Citation Nr: 21005075 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-44 968 DATE: January 28, 2021 ORDER Entitlement to service connection for a right hip condition, to include as secondary to a service-connected left great toe injury, is denied. FINDING OF FACT The most probative evidence is against finding that the Veteran’s right hip condition was caused or aggravated by his service or a service-connected disability. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a right hip condition, either as directly or presumptive due to service or as secondary to the service-connected left great toe injury. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1154; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3.310.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1978 to February 1984. This appeal to the Board of Veterans’ Appeals (Board) is from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to testified at a hearing before this Board in May 2019; however, he withdrew his hearing request in April 2019. In June 2019, the Board issued a decision denying this claim, and in response the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Remand (Joint Motion), vacating the Board’s decision denying this claim and remanding this claim back to the Board for action consistent with agreement in the Joint Motion. The parties had agreed that the Board had provided an inadequate statement of reasons and bases for denying service connection. In September 2020, after receiving this claim back from the Court, the Board found that the Veteran’s service connection claim for a right hip condition reasonably included his sciatic pain. The Board, however, then proceeded to remand this claim back to the RO (Agency of Original Jurisdiction (AOJ)) for necessary further development to comply with the April 2020 Joint Motion. There since has been compliance, certainly the acceptable substantial compliance, with the Board’s remand directives. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). In November 2020, after issuance of the November 2020 Supplemental Statement of the Case (SSOC) on remand, the Veteran’s representative submitted additional evidence consisting of private medical records and medical articles. Neither the Veteran nor his representative waived AOJ initial consideration of this additional evidence, but no such waiver was required. In this regard, any pertinent evidence submitted by a claimant or his representative after an appeal is certified (or, here, recertified) to the Board must be referred back to the AOJ, unless such evidence is accompanied by a waiver of consideration by the AOJ or the Board determines that the benefit(s) to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1304(c); see Disabled American Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (holding that appellants are denied “one review on appeal to the Secretary” when the Board considers additional evidence without having to remand the case to the AOJ for initial consideration, and without having to obtain the appellant’s waiver). However, the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, § 501, Pub L. 112-154, 126 Stat. 1165 (August 6, 2012), amended 38 U.S.C. § 7105 by adding new paragraph(e) and providing that, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. See 38 U.S.C. § 7105(e); see also VA Fast Letter 14-02 (May 2, 2014). The Veteran’s VA Form 9 (Substantive Appeal) was received by the AOJ in August 2017, which is after the February 2, 2013 effective date of the new statute permitting initial review by the Board of any new evidence submitted by the Veteran, without the need for initial AOJ review. See 38 U.S.C. § 7105(e); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165. Therefore, under the automatic waiver provisions, the Board can proceed with initial review of this additional private medical evidence, without referral to the AOJ in the way of another remand. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain conditions are considered “chronic”, per se, including arthritis, and may be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran’s separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection also may be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Entitlement to service connection for a right hip condition, to include as secondary to a service-connected left great toe injury. The Veteran already has established his entitlement to service connection for residuals of a left great toe injury, status post cheilectomy. He contends that he has right hip pain that is caused or aggravated by this left great toe disability, so his claim is predicated on the notion that his right hip disability is secondary to his left great toe disability. In a July 2015 written statement, he claims that he started having pain in his right hip as his left foot worsened over time causing his body to overcompensate, thus, putting more weight on his right side. He stated “[t]his led to me having surgery on my right side (L4-L5 Discs) … due to sciatic pain.” The medical evidence of record shows the Veteran had left foot surgery involving cheilectomy of his left great toe in July 2014. In an August 2014 VA treatment note, he complained of right hip pain due to compensation stemming from his left foot surgery. However, an X-ray of his right hip was unremarkable. In September 2015, the Veteran underwent a VA examination. The VA examiner reviewed the claims file and evaluated the Veteran and determined that, while he experienced subjective symptoms of right hip pain, he did not have a diagnosis of a right hip condition. This examiner explained that August 2014 X-ray imaging showed a normal right hip and that the Veteran underwent a lumbar right L4-5 hemilaminotomy with medial facetectomy in May 2015. On physical examination, he had limited range of motion in his right hip. Based on the evidence reviewed, this examiner opined that there was insufficient evidence to warrant or confirm a current diagnosis of an acute or chronic right hip condition or functional effects from a right hip condition. The examiner explained that the decreased range of motion and pain in the Veteran’s right hip were consistent with and most likely secondary to his lumbar spine post-operative status. Further concerning this, private treatment records reveal that the Veteran was suffering from lumbar L4-5 disk herniation that included symptoms of right-sided pain and lumbar sciatica. The notes indicate the herniation affected the right L5 nerve root. He underwent surgery for a right L4-L5 hemilaminotomy on May 7, 2015. To the extent there is no specifically diagnosed right hip disorder to account for the Veteran’s subjective complaint of pain in this hip, the Veterans Court (CAVC) has clarified that “‘disability’ in [38 U.S.C] § 1110 refers to the functional impairment of earning capacity.” See Saunders v. Wilkie, 886 F.3d 1356 (2018). It was also stated in this case that “pain in the absence of a presently-diagnosed condition can cause functional impairment.” It was additionally stated in Saunders that, to establish a disability, the Veteran’s pain must amount to a functional impairment of his earning capacity. As such, and consistent with the holding in Saunders, the Board finds that pain alone can constitute a ratable disability in this circumstance and, thus, for the purpose of this decision, will accept that the Veteran has a right hip disability owing to his pain in this hip, even absent an underlying diagnosis necessarily accounting for his pain. Yet, regardless of the presence of a current disorder, pain with functional impact in and of itself does not necessarily establish entitlement to service connection because there still must be attribution of the pain or current disorder to the Veteran’s service – again, meaning either by way of direct or presumptive causation or, alternatively, by showing a service-connected disability caused or is aggravating this additionally claimed disorder. And, here, as for direct incurrence in service, the Veteran’s service treatment records (STRs) are grossly unremarkable for any right hip condition, either in the way of a relevant subjective complaint or objective clinical finding such as a pertinent diagnosis. Moreover, regarding presumptive incurrence, there also is no suggestion of arthritis in his right hip within a year of his discharge from service. Instead, it appears from the record that the Veteran’s post-service reports of right hip pain began no earlier than 2012, approximately 28 years after his separation from active service. He reported, during his September 2015 VA examination, a slow gradual onset of his right hip condition, which he said had started in about 2012. He said he would take pain medication and the pain was relieved, but the condition got bad right after his foot surgery in 2014. The record offers no supporting medical evidence showing that chronic right hip pain of any sort existed earlier, thereby indicating there was no direct causal link to his active service or, as mentioned, any presumptive link either. Furthermore, in the secondary context, there equally is no medical opinion relating the Veteran’s right hip pain/sciatica and functional impairment, to the extent found, to his service or service-connected left great toe disability. In October 2020, a VA examiner provided an unfavorable opinion as to whether the Veteran’s right hip/sciatica pain (1) was at least as likely as not incurred in or caused by his service, or (2) is proximately due to, or aggravated by, his service-connected left toe disability. The rationale was that his hip pain, by his own statement, was part and parcel of his back pain/condition for which service connection has not been established, and there is scant evidence in the peer-review medical literature to support his contention of contralateral injury. The examiner explained that, while lay people and many doctors believe that pain or disability in one leg can stress the other one and produce symptoms in it and assume that people limp when they favor one leg unduly stressing the normal leg, the mechanics of limping are poorly documented in the orthopedic literature and there is no clear scientific basis for such reasoning. The examiner further indicated that “[i]n particular, few references have been found to the effect of the limp on the other leg. The evidence available indicates that an injury in one extremity rarely causes a major problem in the opposite or uninjured extremity.”   The Board finds the October 2020 VA medical opinion to be well-reasoned given the explanation provided by the commenting physician, as well as his expertise in this subject matter area. It is apparent in the opinion that the entire claims file was reviewed (thought that, itself, is not determinative of the probative value) and considered all relevant evidence in rendering the opinion. As such, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In November 2020, the Veteran submitted medical articles on piriformis syndrome. A medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). Here, though, the treatise-type evidence submitted by the Veteran is not accompanied by a medical opinion and, therefore, has no probative value as concerning this Veteran, especially. These articles do reflect any consideration of the evidence or even address the evidence as it relates to him, particularly. Indeed, there is no medical opinion of record that correlates the articles submitted with his contentions. The Board thus concludes that this information is insufficient to establish the required medical nexus linking his right hip pain to his service-connected left great toe disability.   For the reasons and bases discussed, the Board finds the preponderance of the evidence is against this claim for service connection on direct-incurrence, presumptive-incurrence, or secondary basis. The Board has considered the benefit-of-the-doubt doctrine; however, there is not an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, this doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.