Citation Nr: 21066807 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-15 708 DATE: November 2, 2021 ORDER Service connection for a low back disorder as secondary to service-connected bilateral knee disabilities is granted. Service connection for a right hip disorder as secondary to service-connected bilateral knee disabilities is granted. Service connection for a left hip disorder as secondary service-connected bilateral knee disabilities is granted. REMANDED The claim of entitlement to a disability rating greater than 20 percent for a left knee disorder (extension) with degenerative arthritis is remanded. The claim of entitlement to a second clothing allowance is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of a low back disorder which has been related to a service-connected disability. 2. The Veteran has a current diagnosis of a right hip disorder which has been related a service-connected disability. 3. The Veteran has a current diagnosis of a left hip disorder which has been related to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder, as secondary to a service-connected disability, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. 2. The criteria for service connection for a right hip disorder, as secondary to a service-connected disability, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. 3. The criteria for service connection for a left hip disorder, as secondary to a service-connected disability, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training from October 1979 to October 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2013 and May 2017 decisions of the Department of Veterans Affairs (VA). Specifically, the May 2013 rating decision, in part, increased the Veteran's disability rating for loss of extension of the left knee from 10 to 20 percent disabling effective December 19, 2011 and denied service connection for low back, right hip, and left hip disorders. The Veteran disagreed with this decision and perfected this appeal. The May 2017 decision denied a second clothing allowance. The Veteran indicated on his April 2016 VA Form 9 that he wished to testify at a Board hearing. In August 2021 correspondence, he withdrew this hearing request. 1. Service connection for a low back disorder and bilateral hip disorders as secondary to service-connected bilateral knee disabilities is granted. The Veteran contends that service connection is warranted for a back disorder and bilateral hip disorders as secondary to an altered gait caused by his service-connected bilateral knee disabilities. Significantly, the Veteran experiences significant disability due to his knees and is current service connected for status post meniscectomy of the left knee, rated as 30 percent disabling due to instability; left knee disorder (based on limitation of extension) with degenerative arthritis, rated as 20 percent disabling); right knee disorder (based on limitation of extension) with degenerative arthritis, rated as 20 percent disabling; as well as medical collateral ligament repair of the right knee disorder due to instability. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury, event, or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records are negative for complaints regarding the low back and/or hips. Specifically, a February 1981 examination shows a normal spine and lower extremities. Post-service treatment records show complaints of back pain as early as October 2002 and complaints of bilateral hip pain as early as May 2007. Significantly, an October 2002 private treatment record shows complaints of back pain with right leg sciatica for "some time," and a May 2007 private treatment record from Dr. C.N.B. shows back as well as bilateral hip problems. Significantly, Dr. C.N.B. wrote that the Veteran had a limp and that it was likely that his limp is due to his bilateral knee problems. According to Dr. C.N.B., a limp is known to put abnormal forces on a patient's hip/spine therefore Dr. C.N.B. opined that the Veteran's hip and lumbar spine problems likely are in significant part due to his bilateral knee abnormalities as is supported by the October 2002 private treatment record. A subsequent September 2009 report from the Veteran's employer shows that the Veteran sustained a slip and fall injury resulting in a back strain. The Veteran submitted an initial claim for service connection for a back disorder as well as bilateral hip disorders in November 2011. In connection with this claim, Veteran submitted a March 2012 statement from Dr. D.B. Dr. D.B. noted that, upon review of the Veteran's medical records, it was clear that there were increased degenerative changes in the left and right knees, left and right hips, and the lumbar spine as visualized on radiographs. The L4/L5 and L5/S1 intervertebral joints revealed severe loss of disc height as well as eburnation with anterior and posterior spur formation. Advanced degenerative joint disease is apparent in the hips, bilaterally, with loss of joint space and eburnation. According to Dr. D.B., the progressive pattern of degenerative arthrosis makes apparent the initial damage to the knees has caused compensatory gait changes producing these results. As such, Dr. D.B. opined that the Veteran's lumbar spine and bilateral hip disabilities were related to the Veteran's service-connected knee disabilities. The Veteran was afforded VA spine and hip examinations in April 2015. Significantly, the April 2015 VA spine examination shows a diagnosis of degenerative disc disease (noting an onset in 2009) and the April 2015 VA hip examination shows a diagnosis of bilateral trochanteric pain syndrome (noting an onset in 2015). The examiner then opined that there is insufficient evidence to support an at least as likely as not nexus between the Veteran's current low back and bilateral hip conditions with his service-connected left knee condition. As rationale for this opinion, the examiner noted that the Veteran sustained a fall at work in the year of 2009 at which time he sought medical attention with complaints of low back symptoms. A radiograph taken at that time showed degenerative disc disease. This work related incident occurred over twenty five years after the Veteran's separation from service. Thus, a nexus with service is less likely than not. Similarly, the Veteran's left knee condition of severe osteoarthritis with history of meniscus tear is not medically considered an etiology of lumbar spine degenerative disc disease or hip pathology such as trochanteric bursitis. Of note, the examination reveals significant bilateral genu varum deformities which can pose increased strain on the bilateral lower extremity joints to include the hips. The genu varum deformity is unrelated to the service-connected condition of the left knee. Therefore, the examiner found that the Veteran's current low back and bilateral hip conditions are less likely than not secondary to his service-connected left knee disability. Upon review of the above evidence, the Board finds that service connection for a back disorder as well as bilateral hip disorders is warranted. As an initial matter, the Board finds that the Veteran has current diagnoses of degenerative disc disease as well as bilateral trochanteric pain syndrome. Furthermore, there is medical evidence that such disabilities are related to the Veteran's service on a secondary basis specifically the May 2007 statement from Dr. C.N.B. as well as the March 2012 statement from Dr. D.B. relate the Veteran's low back and bilateral hip disorders to an altered gait caused by the Veteran's service-connected bilateral knee disabilities. While the April 2015 VA examiner provided a negative nexus opinion, this opinion appears to be based on factual inaccuracy (finding that the Veteran's back pain began following a work injury in 2009 when there is a history of back pain since at least 2002) and does not discuss whether the Veteran's bilateral knee disabilities have resulted in an altered gait causing the low back and bilateral hip disabilities. Thus, when weighing the various medical opinions in this case, the Board will afford the Veteran the benefit of the doubt. Accordingly, the Board finds that the evidence of record is sufficient to find that the Veteran's low back and bilateral hip disorders are related to his military service on a secondary basis. Therefore, service connection for low back and bilateral hip disorders is warranted. REASONS FOR REMAND 2. The claim of entitlement to a disability rating greater than 20 percent for a left knee disorder (extension) with degenerative arthritis is remanded. The Veteran contends that a disability rating greater than 20 percent is warranted for his service-connected left knee loss of extension. He was last afforded a VA knee examination in September 2016. Significantly, this examination report shows range of motion findings for the knees, but it does not indicate whether the findings were on either active vs. passive motion and/or in weight-bearing vs. nonweight-bearing. The Board observes that just prior to the September 2016 VA knee examination, a precedential opinion that directly affects this case was issued by the Court of Appeals for Veterans' Claims (Court). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Unfortunately, the September 2016 VA knee examination report does not comply with Correia. Accordingly, the Veteran must be afforded a new VA examination to correct the deficiencies with regard to Correia. 3. The claim of entitlement to a second clothing allowance is remanded. By way of history, the Veteran has been in receipt of an annual clothing allowance pursuant to 38 C.F.R. § 3.810 due to clothing issues associated with his prosthetic knee braces since approximately 1996. In May 2015, the Veteran requested that he be awarded a second annual clothing allowance due to additional clothing issues associated with his service-connected knee disabilities and in May 2017 correspondence, VA denied a second clothing allowance. In June 2017, the Veteran entered a notice of disagreement (NOD) with May 2017 decision. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case (SOC). See 38 C.F.R. § 19.26. Unfortunately, the Veteran has not yet been issued an SOC with regard to his request for a second clothing allowance. Thus, remand for issuance of an SOC on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, the issue will be returned to the Board only if the Veteran perfects an appeal after receiving the SOC. Finally, with regard to both remanded issues, the Board notes that there are likely outstanding VA treatment records as the most recent VA medical records in the claims file are dated in September 2017. Therefore, all outstanding VA treatment records should be obtained on remand. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated since September 2017. 2. After obtaining any outstanding records to the extent possible, schedule the Veteran for a VA knee examination for evaluation of the current nature of his service-connected left knee loss of extension. The examiner should test the range of motion (using a goniometer) in active motion, passive motion, weight-bearing, and non-weight-bearing, for each knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, (e.g., feasibility of testing the knee in weight-bearing) he or she should clearly explain why that is so. The VA examiner should also ask the Veteran for a description of his flare ups, and express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. 3. Issue an SOC regarding the May 2017 denial of a second clothing allowance. He should be advised of the time period in which to perfect his appeal. Only if the Veteran's appeal as to this issue is perfected within the applicable time period, then such should return to the Board for appellate review. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.