Citation Nr: 21068656 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-35 390 DATE: November 12, 2021 ORDER Entitlement to service connection for left hip strain is granted. Entitlement to service connection for right hip strain is granted. REMANDED Entitlement to service connection for left ankle sprain is remanded. FINDING OF FACT The preponderance of the evidence indicates that the Veteran's left hip strain and right hip strain have been caused by her service-connected degenerative arthritis of the thoracolumbar spine, disabilities of the bilateral knees, and lumbar radiculopathy of the bilateral lower extremities. CONCLUSION OF LAW The criteria for service connection for left hip strain and right hip strain on a secondary, causation, basis have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1993 to March 2001. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for left ankle sprain, left hip pain and right hip pain. In December 2018, the Board denied service connection for a left ankle sprain and remanded the claims for left hip pain and right hip pain for further development. In October 2019, the United States Court of Appeals for Veterans Claims (Court) vacated in part the December 2018 Board decision and remanded the claim for service connection for a left ankle sprain for further development. In February 2020 and January 2021, the Board remanded the claim for a left ankle sprain for further development. In May 2021, the Board remanded the claims for service connection for a left ankle sprain and right hip pain and left hip pain for further development. See Manlincon v. West, 12 Vet. App. 238 (1999). Service Connection Entitlement to service connection for left hip strain and right hip strain The Veteran contends that her current bilateral hip strain was caused by her active duty service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of (1) a current disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. 38 C.F.R. § 3.310(a), (b). Turning to the evidence, a June 2000 service treatment record shows that the Veteran was diagnosed with "chronic recurrent LBP and bilat hip pain." reported hip pain in June 2000. In October 2000 the Veteran reported that she had had hip pain for seven months. The Veteran reported hip pain in her February 2001 separation report of medical history, and the examining physician stated that it may be related to the unequal length of the Veteran's legs. In the separation medical examination, the Veteran's spine and lower extremities were found to be normal. After separation from service, the Veteran was treated for right hip pain at Womack Army Medical Center in November 2001. The Veteran stated that she had low back and right hip pain for the past 18 months. September 2002 VA treatment records note pain in the right hip radiating down the right leg. In a July 2017 Statement in Support of Claim, the Veteran stated that her hip pain onset around 1997. The Veteran believes that her hips were hurt because her service-connected back injury affected her gait and posture. She reported that she is in constant pain in her hips at a level of 4/5 severity and that she takes Motrin with only incomplete relief. In March 2019, a private doctor opined that it is at least as likely as not that the Veteran's bilateral hip conditions, to include sacroiliac joint arthropathy, is due to her mechanical low back pain and her right leg length discrepancy diagnosed during active-duty service. An October 2019 VA X-ray of the bilateral hips found that the hips were radiographically within normal limits. In October 2019, VA prepared a Disability Benefits Questionnaire (DBQ) for hip and thigh conditions. The examiner diagnosed a bilateral hip strain. The Veteran stated that she had a history of bilateral hip pain which started gradually, and that at one time she briefly dislocated her left hip. She reported constant soreness in her bilateral hips and said that it is getting worse. The Veteran had normal muscle strength. A VA medical opinion was also prepared in October 2019. The examiner opined that the Veteran's hip condition was at least as likely as not related to service because the Veteran had no problems with her left hip prior to service. The examiner concluded that the hip condition onset during service. An addendum medical opinion was prepared on October 7, 2019. This addendum stated that the right hip condition was less likely than not related to service because the right hip condition during service was acute only, and therefore there is no nexus. In August 2020, a private medical opinion stated that the Veteran's right knee injury likely contributed to his development of right leg length discrepancy, low back pain, and sacroiliac dysfunction. In February 2021, the Veteran submitted treatise articles for VA consideration. The first article discussed diagnosing and treating osteoarthritis in young persons and athletes. The second article (which was submitted twice) concluded that individuals with knee osteoarthritis often have alterations of their gaits which interfere with their daily lives. The third article found that degenerative changes in the lumbar region lead to degenerative changes in the knees but did not discuss the hips. A fourth article concluded that low back pain and leg pain contribute to hip osteoarthritis. The Veteran submitted another Statement in Support of Claim for hip pain in February 2021. She said that she was treated for severe hip pain during her service and again in September 2002. After that time, the Veteran stated that she self-treated with pain medications because she did not have time to attend VA appointments in light of her employment and child-care obligations. The Veteran said that a doctor told her that her back pain, hip pain, and sciatic radiculopathy were related. She believes that her hip pain is caused or aggravated by her knee and back disabilities and she stated that some studies indicate that hip pain can be secondary to degenerative arthritis of the back. A VA medical opinion was prepared in July 2021. The examiner acknowledged that the separation medical history showed hip pain but stated that the assessment of hip pain in service may have been inaccurate. The examiner noted that the May 2011 orthopedics evaluation and May 2017 medical evaluation did not note hip problems and concluded that it is therefore less likely than not that the Veteran's hip disabilities onset during service. Concerning secondary service connection, the examiner opined that there is "no pathophysiological correlation" between degenerative arthritis of the lumbar spine, bilateral lumbar radiculopathy of the sciatic nerve, degenerative arthritis of the knees with retro-patellofemoral syndrome and chondromalacia patellae in the development of bilateral hip degenerative arthritis. The examiner opined that it is more likely that the Veteran's morbid obesity is the cause of the degenerative arthritis of the bilateral hips because morbid obesity is a known risk factor for developing hip arthritis. Applying the criteria for direct service connection, the Veteran has a current disability in her bilateral hip strain which was diagnosed in October 2019. She reported in-service injuries to her hips in June 2000, October 2000, and in her February 2001 separation medical history. The first two requirements for direct service connection have been met. Saunders, 1361. The third requirement for direct service connection is a nexus of causation between the current disability and the in-service injury. Id. Here, the medical evidence is divided. The private opinion of March 2019 concluded that the Veteran's hip conditions were caused by her service-connected disabilities of the back and bilateral knees. The two VA medical opinions of October 2019 concluded that the Veteran's left hip disability but not her right hip disability was caused by active-duty service. July 2021 VA medical opinion concluded that it is less likely than not that the Veteran's hip disabilities onset during service or were caused by her service-connected disabilities. The private opinion of March 2019 is supported by treatise evidence which states that low back pain and osteoarthritis of the knees can contribute to alteration of gait and osteoarthritis in hips; therefore, it holds substantial probative value. Although the Veteran does not have osteoarthritis of the hips, the Veteran has contended that it is the alteration of her gait that led to her current bilateral hip strain. The March 2019 opinion and the treatise evidence are consistent that knee osteoarthritis leads to alterations in gait. The July 2021 VA medical opinion holds little probative value because (1) it stated that the assessment of hip pain during service may have been inaccurate but did not explain that conclusion and did not acknowledge that there were three reports of hip pain during service; (2) it relied on that incomplete statement in order to reach its conclusion; (3) it relied on the absence of evidence of hip problems in May 2011 and May 2017 to reach its conclusion; and (4) concerning secondary service connection, it did not address the treatise evidence of record. Instead, the opinion simply stated that there is "no pathophysiological correlation" between the service-connected knees and lower back and the Veteran's hips. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the Board can reject medical opinions and assign no probative value to opinions based upon facts or premises that have been found to be inaccurate or incorrect); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where examiner did not comment on report of in-service injury and relied on lack of evidence in service treatment records to provide a negative opinion). The most probative evidence of record suggests that secondary service connection can be established as the preponderance of the evidence indicates that the Veteran's bilateral hip strain is caused by her service-connected back, knee, and radiculopathy disabilities, and service connection is warranted on a secondary basis. 38 C.F.R. § 3.310(a). All material elements of secondary service connection have been met. REASONS FOR REMAND Entitlement to service connection for left ankle sprain is remanded. In May 2021, the Board directed the RO to obtain an addendum opinion as to the etiology of the Veteran's left ankle condition. The RO obtained an opinion in July 2021 which concluded that "there is no objective evidence of a disabling ankle condition on exam," but did not provide an etiology opinion. However, other evidence of record indicates that there is a disabling ankle condition, including an April 2020 DBQ which found pain and stiffness resulting in functional impairment. The Veteran was also diagnosed with left tibialis posterior tendinitis in 2016, and she reported stiffness and pain in the ankle in a July 2014 DBQ. Lay evidence including her ex-husband's September 2020 statement also indicates that there is functional impairment of the left ankle. The May 2021 remand directed the examiner to specifically address the statements by the Veteran's ex-husband concerning her left ankle injury and symptomatology, but the July 2021 opinion did not. In addition, the Veteran disputed the findings of the July 2021 examination, contending that the examiner did not review her records and was unaware that she had an MRI earlier in July 2021. A previous remand confers on the claimant, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary in order to ensure substantial compliance with the Board's prior remand directives. The matter is REMANDED for the following actions: 1. Obtain an addendum opinion as to the nature and etiology of the Veteran's left ankle condition. The clinician is asked to opine: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's left ankle disability is related to her active-duty service, to include the Veteran's lay statements that her ankle pain began in-service and has continued ever since. Note, the Veteran has submitted lay correspondence from her former spouse attesting to on-going ankle pain, and the use of over-the-counter treatment since service. (b.) Whether the Veteran's left ankle disability is at least as likely as not caused by her service-connected lumbar spine, bilateral knee, bilateral hip, and/or radiculopathy disabilities. (c.) Whether the Veteran's left ankle disability is at least as likely as not aggravated by her service-connected lumbar spine, bilateral knee, bilateral hip, and/or radiculopathy disabilities. Note: aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. Note: the Veteran has submitted treatise evidence suggesting a correlation between her claimed condition and her lumbar spine/knee disabilities. These treatises, submitted in February 2021, must be considered. Additionally, these treatises must be addressed in relation to the Veteran's arguments submitted in February 2021 and those of her representative in April 2021. Note: the examiner must address the positive September 2015 opinion of G.U., ARNP, and the March 2019 positive opinion of M.B., PA-C. These collective opinions and adjoining treatises are suggestive that the Veteran's left ankle disability could be biomechanically linked with, and/or impacted by, her service-connected spine and knee disabilities, as well as her conceded in-service leg shortening in 2000. (The RO must ensure the examiner has copies of all the Veteran's records, including April-December 2000 service treatment records documenting said leg length discrepancy diagnosis. The October 2020 examiner indicated being unable to access these records). (Continued on the next page) The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.