Citation Nr: 21061565 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-47 936 DATE: October 4, 2021 REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for diverticulitis/diverticulosis is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from September 1972 to August 1975 and in the United States Army from May 1980 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2014 and February 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran testified before the Board at a videoconference hearing in October 2019. A transcript of the hearing has been added to the Veteran's claims file. In an April 2020 Board decision, the Board reopened and remanded the Veteran's claims for entitlement to service connection for right and left hip disabilities so that new medical examinations and opinions could be obtained. In the same April 2020 decision, the Board also remanded the claim for diverticulitis for a medical examination. The Veteran's claim of service connection for diverticulitis/diverticulosis was previously characterized as a claim of service connection for diverticulitis. To ensure that any potential diagnosis of diverticulosis is also considered, the Board has broadened and recharacterized the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability is remanded. 2. Entitlement to service connection for a left hip disability is remanded. The Veteran claims that his right hip and left hip disabilities are caused or aggravated by his service-connected lower extremity disabilities, which include bilateral pes planus, left and right ankle disabilities, and a right knee disability. In particular, the Veteran asserts that his hip disabilities were caused by gait alterations and biomechanical adjustments stemming from having to overcompensate while ambulating due to his service-connected lower extremity disabilities. Following the May 2021 grant of service connection for a lumbar spine disability, the Veteran's contentions extend to gait alterations potentially caused by his lumbar spine disability as well. Regarding current disabilities, the Veteran submitted an August 15, 2016 Radiology Report from the S.C. Medical Group, documenting, in pertinent part, the presence of mild bilateral hip osteoarthritis. Here, the Board notes that the Veteran underwent an examination in September 2006. In pertinent part, the examination states that the Veteran "claimed the last few years of shifting weight, his right leg and ankle started hurting years after because of pain," "[h]is gait is a right antalgic gait with right leg turning outward during ambulation," OPINION: "Right knee pain and leg pain at least as likely as not related to pain of [service-connected] left ankle," "RATIONAL[E]: Shifting weight." In the Veteran's December 2014 examination, the examiner summarized the Veteran's history, in part, "MOI [mechanism of injury] Vet blames right hip pain on altered body mechanics due to kne[e]s, ankles and feet." The examiner noted that the Veteran's gait was "antalgic" with a "WIDE base of support," and that the Veteran was "[u]nable to walk on toes and heels or fully squat and return to a standing position." The Board also notes a letter received in October 2016 from Dr. K.S.H., D.P.M., who stated that the Veteran "is being treated for chronic pes planovalgus and subsequent apropulsive gait changes," and "[t]his condition is contributing to his lower extremity pain primarily his knee dysfunction and is directly related to a biomechanical dysfunction of his lower extremities." The Board remanded the Veteran's claims so that a medical professional could address whether the Veteran's hip disabilities were caused or aggravated by gait changes due to service-connected disabilities. An April 2021 examiner opined against a relationship to service-connected disability, discussing how a clinically obvious Trendelenburg gait could result in a significant impact on another joint, but noting that the Veteran did not exhibit this type of gait. The examiner did not directly address the medical and lay evidence highlighted above regarding the Veteran's altered gait leading to lower extremity disabilities. Moreover, the examiner's opinion did not reflect consideration of any potential impact the Veteran's now service-connected lumbar spine disability may have had, if any, on altering his gait and leading to bilateral hip disabilities. The Board observes that the April 2021 examiner also determined that it was at least as likely as not that the Veteran's service-connected disabilities, to include pes planus, bilateral ankle disabilities and/or right knee disabilities, either individually or collectively, caused the Veteran to become obese. However, the examiner also found that the Veteran's obesity was not causing the degenerative arthritis in his bilateral hips or lumbar spine, as they were "degenerative changes and develop over years from excessive constant stress or pressure, not just weight." The Board notes that the examiner failed to explain the impact of obesity, itself, on causing excessive constant stress or pressure on the Veteran's knees. This portion of the examiner's opinion is also incomplete because, as noted above, it did not consider the impact of the Veteran's service-connected lumbar spine disability in the process of developing obesity that causes another disability (i.e., bilateral hip disabilities), as an "intermediate step." On remand, the Veteran should be scheduled for a VA hip examinations, and more complete etiological opinions should be obtained, addressing each theory of entitlement. 3. Entitlement to service connection for diverticulitis/diverticulosis is remanded. During the Veteran's Board hearing in October 2019, the Veteran competently testified that he was diagnosed with diverticulitis in approximately 2002 and testified that he had observed symptoms of what he believed was diverticulitis as far back as 1984. The Veteran's wife has also submitted a lay statement in December 2015, suggesting symptoms may have begun as early as October 1987, based on her observations of the Veteran following his return from deployment. Additionally, a VA Primary Care Outpatient note from November 2015 assesses the Veteran as having a current diagnosis of diverticulitis. The Board observes that, while in service, the Veteran presented in September 1974, January 1975, February 1975, March 1975, and August 1975 with gastrointestinal complaints that could be relevant to a determination of eligibility for service connection for diverticulitis. The Board requested that the Veteran be examined in connection with his claim. However, the Veteran was not examined and, instead, the Acceptable Clinical Evidence (ACE) process was used to evaluate the Veteran. In providing a negative nexus opinion, it does not appear the examiner considered the Veteran's lay statements, nor those of his spouse. The examiner's opinion did not reflect consideration of the in-service gastrointestinal complaints, or the Veteran's contention that these complaints were related to his diagnosis of diverticulitis. The examiner also failed to consider the VA Primary Care Outpatient note from November 2015, which assessed the Veteran as having a current diagnosis of diverticulitis. The examiner reported that the Veteran did not have a current diagnosis of diverticulitis, but, instead, had a current diagnosis of diverticulosis. On remand, the Veteran is entitled to an in-person examination which considers his lay statements, those of his spouse, his in-service treatment records, showing gastrointestinal complaints, and his contention that these complaints were related to his diagnosis of diverticulitis. The examiner should also consider whether the Veteran has a diagnosis of diverticulosis, which is related to his contentions. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disabilities of the Veteran's right and left hip. The examiner should review the Veteran's claims file and take a history from the Veteran as to the progression of his claimed disabilities. After review of the record, interview and examination of the Veteran, the examiner should respond to the following, as appropriate: a.) Please identify all current disabilities of the right and left hip. b.) For each disability identified, please indicate whether it is at least as likely as not (approximately 50 percent probability) that such was caused or aggravated by his service-connected bilateral pes planus, bilateral ankle disabilities, right knee disability and/or his lumbar spine disability, either individually or in combination. The Veteran's contention that his disabilities are caused or aggravated by an altered gait or altered biomechanics on account of overcompensating for his service-connected lower extremity disabilities must be discussed by the examiner or examiners. The examiner is asked to consider and comment on: i. The September 2006 examination, stating that the Veteran "claimed the last few years of shifting weight, his right leg and ankle started hurting years after because of pain," and remarking that "[h]is gait is a right antalgic gait with right leg turning outward during ambulation," OPINION: "Right knee pain and leg pain at least as likely as not related to pain of [service-connected] left ankle," "RATIONAL[E]: Shifting weight." ii. The Veteran's December 2014 examination, summarizing the Veteran's history, in part, "MOI [mechanism of injury] Vet blames right hip pain on altered body mechanics due to kne[e]s, ankles and feet" and remarking that the Veteran's gait was "antalgic" with a "WIDE base of support," and that the Veteran was "[u]nable to walk on toes and heels or fully squat and return to a standing position." iii. The letter, received in October 2016, from Dr. K.S.H., D.P.M., stating that the Veteran "is being treated for chronic pes planovalgus and subsequent apropulsive gait changes," and "[t]his condition is contributing to his lower extremity pain primarily his knee dysfunction and is directly related to a biomechanical dysfunction of his lower extremities." c.) Notwithstanding the above, the examiner should also provide responses to the following questions regarding the potential impact of obesity on the development of right and left hip disabilities: i. Is it at least as likely as not that the Veteran's service-connected disabilities, to specifically include pes planus, bilateral ankle disabilities, his right knee disability and/or his lumbar spine disability, caused the Veteran to become obese or aggravated the Veteran's obesity? ii. If so, was the obesity that resulted from or was aggravated by the service-connected disabilities a substantial factor in causing his right and left hip disabilities? iii. Would the Veteran's right or left hip disabilities not have occurred, but for the obesity caused or aggravated by service-connected lower extremity disabilities? All opinions should be supported by a medical explanation or rationale. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diverticulitis/diverticulosis. The examiner is asked to: a.) Clarify whether the Veteran has current diagnoses of diverticulosis or diverticulitis, or whether he has had such diagnoses at any point during the period on appeal (i.e., from December 11, 2015). If either disability has resolved during the appeal period, this should be made clear. If either disability was previously mis-diagnosed, this should also be explained. b.) Opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) any disability identified (to include if it resolved during the appeal period) had onset in, or is otherwise related to his period of active duty service. The examiner is asked to consider and comment on the gastrointestinal complaints that are documented in the Veteran's service treatment records in September 1974, January 1975, February 1975, March 1975, and August 1975, as well as the lay statements provided by the Veteran and his wife. All opinions should be supported by a medical explanation or rationale. 3. Thereafter, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, 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.