Citation Nr: 21002946 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 11-15 080 DATE: January 19, 2021 ORDER 1. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability, is granted. 2. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability, is granted. REMANDED 3. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. 4. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right hip disability, diagnosed as bursitis and arthritis, is shown to be related to a likely underlying inflammatory condition during active service. 2. The Veteran’s left hip disability, diagnosed as bursitis and arthritis, is shown to be related to a likely underlying inflammatory condition during active service. CONCLUSIONS OF LAW 1. Service connection for a right hip disability is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Service connection for a left hip disability is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 1986 to February 1990. This case comes to the Board of Veterans’ Appeals (Board) on appeal from August 2009 and May 2012 Department of Veterans Affairs (VA) rating decisions. In August 2014, the Board remanded the case to the Regional Office (RO) to afford the Veteran a requested videoconference hearing, which was held before the undersigned in January 2017. An April 2017 Board decision reopened the claim of service connection for a right hip disability and remanded the case to the RO for additional development of all issues. An April 2018 Board decision denied service connection for right and left hip disabilities and higher ratings for right and left knee disabilities and remanded the TDIU issue. The Veteran appealed the Board’s decision denying the hip and knee claims to the United States Court of Appeal for Veterans Claims (CAVC). A November 2018 CAVC Order granted a November 2018 Joint Motion for Partial Remand (JMPR) of the parties, thereby vacating the Board’s decision as to the hip and knee claims and remanding the matters to the Board for action consistent with the terms of the Joint Motion. In June 2019, the Board remanded the case to the RO for further development of the service connection and increased rating claims. In October 2019, the Board remanded the case to the RO regarding the TDIU claim. Service Connection 1. and 2. Entitlement to service connection for a right hip disability and a left hip disability, to include as secondary to a service-connected disability is granted. The Veteran contends that she has right and left hip disabilities that are related to her service-connected bilateral knee disabilities. At a January 2017 Board hearing, she alleged that her gait was altered due to her knee disabilities and that treatment providers in approximately 2004 informed her that the knee problems were causing injury to her hips. Thus, her stated theory of entitlement is one of secondary service connection (her bilateral hip disabilities are secondary to the service-connected bilateral knee disabilities). See 38 C.F.R. § 3.310. Notwithstanding the asserted secondary service connection theory of entitlement, the Board concludes that the Veteran is shown to have current right hip and left hip disabilities that are directly related to her active duty service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA medical reports show the Veteran has a current diagnosis of a bilateral hip disability (identified as both trochanteric pain syndrome including bursitis and degenerative arthritis. Thus, the question becomes whether the current disability is etiologically related to service or a service-connected disability. Service treatment records do not note complaints, findings, treatment, or a diagnosis of a hip disability, and postservice records do not document hip complaints until many years after the Veteran’s February 1990 separation from service. Beginning in June 1999, she was seen for right hip pain. She was seen for “probably osteoarthritis” for multi-articular arthritic pain in the right hip, hand, and ankle. Treatment for right hip pain was sought in December 2001 and in October 2003, when it was noted that she had multiple arthralgias. An April 2004 record notes a recent diagnosis of right hip bursitis, and a May 2004 record notes complaints of pain in all joints, especially the hips and knees. A July 2008 VA examiner diagnosed bilateral hip bursitis. In November 2009, X-rays of the hips showed osteoarthritis of both hip joints. A September 2017 VA examiner diagnosed bilateral trochanteric pain syndrome including trochanteric bursitis, with a diagnosis date cited as 1994, and bilateral hip degenerative arthritis, with a diagnosis date cited as 2009. A September 2020 VA examiner acknowledged the diagnoses of hip arthritis and bursitis. On the secondary service connection question, there are probative opinions overwhelmingly against the Veteran’s claim, as shown by reports of VA examinations in July 2008, October 2014, September 2017, and September 2020. However, on the direct service connection question, there is a probative opinion in favor of the claim. On a September 2020 (fee-basis) VA examination, an orthopedic surgeon opined that the Veteran’s bilateral hip disability is directly related to her service, finding that it was due to a likely underlying inflammatory condition that existed during military service and has continued to worsen over time since service. The examiner noted pertinent evidence in the file including a workup during service in 1989 for possible inflammatory arthritis due to multiple joint involvement, VA rheumatology records documenting diffuse body pains and extensive treatment for hip pain, including injections into the trochanteric bursae, and the service-connected diagnosis of hidradenitis suppuritiva. She explained that it was more likely than not that the Veteran had an underlying inflammatory arthritis manifested with joint swelling, cartilage wear, and pain in multiple joints to include her hips and knees, which had been ongoing since service. She stated that there is a “growing body of medical literature” in support of an association between [the Veteran’s] hidradenitis suppuritiva and inflammatory arthritis, with worsening joint symptoms accompanying flares of the skin condition. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current right hip and left hip disabilities are related to disease that became manifest during active service. Resolving any remaining reasonable doubt in favor of the Veteran, the Board finds that service connection for right and left hip disabilities is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 3. and 4. Entitlement to a rating in excess of 10 percent for a right knee disability and to a rating in excess of 10 percent for a left knee disability Based on the November 2018 JMPR, the Board (in June 2019) remanded this case for an examination of the Veteran in compliance with 38 C.F.R. § 3.159(c) and Correia v. McDonald, 28 Vet. App. 158 (2016). Unfortunately, a subsequent report of a September 2020 VA examination still does not appear to be Correia-compliant. In fact, it appears that the examiner’s “Correia Statements,” in the remarks section at the end of the report, are even less forthcoming than those by the previous, 2017, VA examiner. For example, unlike the 2017 VA examination report (deemed insufficient in the JMPR), it does not note passive range of motion findings and does not, as directed in the remand, report range of motion testing under both weight and non-weight bearing conditions. It states only that there is objective evidence of pain on passive range of motion for the right knee but not the left knee and that there is no objective evidence of pain when the knees are in non-weight bearing. Therefore, the case must be returned for clarification of the medical findings, to ensure compliance with remand directives per Stegall v. West, 11 Vet. App. 268 (1998). 5. Entitlement to a TDIU The TDIU issue was the subject of an April 2018 Board remand, which directed that the AOJ (Agency of Original Jurisdiction) refer the matter to the Director of the Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). The AOJ returned the matter to the Board pending a final determination of the inextricably intertwined hip and knee claims, asserting in a July 2019 supplemental statement of the case that it would be “preemptive” to refer the TDIU to Compensation Services in light of the CAVC’s Order vacating the Board’s April 2018 decision denying the hip and knee claims and remanding such matters to the Board. As in October 2019 the Board remanded the hip and knee claims to the AOJ for further development, the inextricably intertwined TDIU matter was also remanded (again. The right and left hip disability claims have been granted herein (above), and the right and left knee disability claims are being returned for further development. Thus, the TDIU matter must deferred for reconsideration upon RO implementation of the awards and following completion of the additional development sought on the knee disability claims. [Potentially, the Veteran could then meet the schedular rating requirements for TDIU in 38 C.F.R. § 4.16(a), obviating the need to refer the case to the Director, Compensation Service, under 38 C.F.R. § 4.16(b), as the Board previously directed. These matters are REMANDED for the following: 1. Return the claims file to the September 2020 fee-basis VA examiner for an addendum opinion regarding the severity of the Veteran’s service-connected right and left knee disabilities. The examiner is asked to clarify the findings of the knee range-of-motion studies, specifically, those findings required by Correia v. McDonald, 28 Vet. App. 158 (2016), as underscored by the parties to the November 2018 JMPR granted by the CAVC. The examiner should comment on the ranges of motion on active and passive motion and in weight-bearing and non-weight-bearing. (For example, assuming the September 2020 examination report reflects active range of motion values in non-weight-bearing conditions, are passive range of motion values the same, better, or worse than those of active range of motion, and if worse, to what degree? And are range of motion values in weight-bearing conditions the same, better, or worse than those in non-weight-bearing conditions, and if worse, to what degree?) If it is not medically possible or feasible to provide such findings (based on the current record), the examiner must explain why that is so. If the examiner is unavailable to provide an opinion or unable to do so without an examination, arrange for an examination. Complete rationale should accompany all opinions. 2. After completion of the development for the knee claims and readjudication of those claims and upon implementation of the awards of service connection for the hip disabilities, review the expanded record and readjudicate the TDIU claim, to include (if 38 C.F.R. § 4.16(a) schedular rating requirements remain unmet) determining the necessity of referring the claim to the Director, Compensation Service, for consideration of an extraschedular TDIU rating under 38 C.F.R. § 4.16(b) [as the Board directed in the April 2018 Remand]. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.