Citation Nr: 21071759 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-66 965 DATE: December 1, 2021 REMANDED Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative joint disease of the left knee is remanded. Entitlement to an increased disability rating for service-connected right knee total arthroplasty, currently with a 30 percent rating, is remanded. Entitlement to an initial disability rating in excess of 20 percent for service-connected left shoulder degenerative joint disease is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on periods of active duty in the United States Army, Army National Guard, and Army Reserve from March 1980 to March 1984, January 2003 to December 2003, and July 2005 to May 2007, respectively, with additional service in the Army National Guard and Army Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2017 rating decision, the RO granted a temporary 100 percent disability rating for the Veteran's service-connected right knee total arthroplasty from July 21, 2015 to August 31, 2016, based on the Veteran undergoing complete revision of the right total knee arthroplasty. A 30 percent evaluation for the post-prosthetic replacement was made effective September 1, 2016. As the temporary 100 percent evaluation did not cover the entirety of the relevant appeal period for the Veteran's claim for an increased disability rating for the right knee disability, it does not represent a full grant of the benefits sought, and the issue remains on appeal. In July 2021, the Veteran presented testimonial evidence at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board acknowledges that in October 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim on which he noted continued disagreement with the denials contained in the September 2019 Supplemental Statement of the Case and checked a box opting the appeals into the modernized review system under the Appeals Modernization Act (AMA). On the same day, however, the Veteran's representative submitted a signed brief indicating that the Veteran would be testifying, and they would be presenting oral arguments at the scheduled hearing. The Veteran and his representative subsequently appeared and presented testimony and argument at a Board hearing under the Legacy review system in July 2021. It is thus assumed that the Veteran intended to continue his appeals under the Legacy review system. Nevertheless, as the Board is remanding these matters for further development, if the Veteran in fact wishes to withdraw his appeals from the Legacy appeals process in favor of continuing under the AMA process, he may submit an additional VA Form 20-0995, Decision Review Request: Supplemental Claim or VA Form 10182 following the Agency of Original Jurisdiction's issuance of another Supplemental Statement of the Case. 1. Entitlement to service connection for a left hip condition is remanded. 2. Entitlement to service connection for a right hip condition is remanded. Remand is needed to provide the Veteran with adequate VA examination and medical opinion concerning his claimed hip disabilities. The Veteran was initially provided with a hip examination in January 2014, at which time the Veteran displayed limited range of motion and decreased strength in both hips. The examiner did not have access to the claims file, and did not provide an etiological opinion. X-rays of the hips from January 2014 showed no acute fractures or dislocation and no degenerative change for the left hip, and no hip joint space narrowing or lytic or sclerotic lesion present for the right hip. At a March 2014 VA examination, the Veteran was noted to have a diagnosis of left hip strain, but the examiner stated that it would be mere speculation to opine whether or not current left hip strain is caused by military service or bilateral knee conditions because there was no objective evidence that left hip pain noted during service was more than acute and current medical literature does not support a cause and effect relationship between separate traumatic joint disease not initiated by the same traumatic event or resulting from altered gait mechanics of the severity and longevity of that documented in this veteran. A private report of consultation and examination by a chiropractic physician was submitted on behalf of the Veteran in March 2015. The report includes a diagnosis of bilateral "well advanced degenerative joint disease of the ... hip complicated by greater trochanteric bursitis," and states that diagnosis and treatment during active duty military service for this condition which persists to the present should qualify the condition for service connection. While a December 2006 service treatment record notes complaints of left hip pain with walking and occasional popping, no diagnosis was rendered. The STRs do not document complaints pertaining to the right hip. An additional VA examination for the hips was provided in August 2019. At that time, the examiner found that there was normal examination of both hips, only subjective evidence of symptoms, and there was no diagnosis for a left or right hip condition as of the date of the August 2019 examination. The report notes that the hip X-rays from January 2014 were negative. The examiner opined that due to the normal examination and being unable to confirm a current chronic hip diagnosis with the current available records, there was no nexus or plausible secondary relationship established. However, the Board notes that a November 2018 VA bilateral hip X-ray report documented "bilateral degenerative change." Additionally, even assuming without deciding that the Veteran did not have a hip disability at the time of the latest examination, the requirement for service connection of a "current" disability is met if the disability existed at any time during or even immediately preceding the relevant appeal period, whether or not it resolves. Therefore, on remand, additional VA examination and medical opinion should be provided to assess the nature and etiology of any current left and/or right hip disabilities and their relationship to service or service-connected knee disabilities. 3. Entitlement to service connection for a right shoulder disability is remanded. The Veteran asserts that he continues to suffer from a right shoulder disability related to an injury sustained during service with the State of Florida National Guard in 1998 and for which he underwent a right shoulder arthroscopic repair shortly thereafter, also in 1998. The Veteran asserts that the initial right shoulder dislocation, with strained shoulder and rotator cuff and biceps tendon tears occurred during his unit's mobilization for Hurricane George in 1998. The Veteran has been consistent in this assertion, and it is documented as part of his prior medical history in April 2007 service treatment records. Review of the claims file does not reflect that efforts have been made to confirm whether the Veteran and his Florida National Guard unit were ordered to full-time duty in 1998. On remand, such development should be completed. 4. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative joint disease of the left knee is remanded. 5. Entitlement to an increased disability rating for service-connected right knee total arthroplasty is remanded. The Veteran seeks increased disability ratings for his service-connected right knee total arthroplasty, currently evaluated as 30 percent disabling, and for his service-connected degenerative joint disease of the left knee, rated as 10 percent disabling. The Veteran was most-recently provided with VA examination of his knees in August 2019. Among other findings, the examination report indicates that the Veteran did not report flareups and did not use assistive devices, and includes an opinion that the conditions do not impact the Veteran's ability to perform any type of occupational task. The examiner stated that while the Veteran reported the conditions, there was no objective evidence found in the claims file since the last examination in September 2016 to support any treatment or worsening symptoms. The Board notes, however, that a January 2019 VA pain note documents that the Veteran used assistive devices including bilateral knee braces and a cane, and that his physical mobility was decreased, and he demonstrated pain behaviors including frequent repositioning, grimacing, and slowed and antalgic gait. Further, physical examination at a November 2019 VA primary care appointment documented objective evidence of right knee swelling, and VA treatment records from September 2020 include the Veteran's report of worsening left knee pain and persistent right knee swelling, and state that the Veteran may have undergone bilateral knee replacement. On remand, additional VA examination should be provided to assess the current severity and manifestations of the Veteran's service-connected left and right knee disabilities. 6. Entitlement to an initial disability rating in excess of 20 percent for service-connected left shoulder degenerative joint disease is remanded. The Veteran's VA treatment records document his complaints of intermittent numbness on the left arm (see October 2018 treatment record), and at the Board hearing, the Veteran asserted that his arm numbness was coming down from his shoulder disorder. At the hearing, he additionally described having constant pain which increased with use, and that he avoids lifting anything. No opinion has yet been obtained concerning whether the Veteran's service-connected left shoulder disability manifested in arm/hand numbness. Additionally, the most recent VA medical opinion is found to be inadequate. Despite the Veteran's lay statements to the contrary, the examiner opined that the Veteran's shoulder conditions do not impact his ability to perform any type of occupational task. No explanation or rationale was given for such opinion, or whether there was some medical basis for discounting the Veteran's lay assertions. On remand, an additional examination should be provided to assess the current manifestations and severity of the Veteran's service-connected left shoulder degenerative joint disease, which includes a clear rationale for any conclusions or opinions stated concerning functional loss and the disability's impact on occupational tasks. 7. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability is remanded. Finally, because a decision on the other issues remanded herein could significantly impact a decision on the issue of entitlement to a total disability rating due to individual unemployability due to service-connected disabilities, the issues are inextricably intertwined. A remand of the latter claim is therefore needed. The matters are REMANDED for the following action: 1. The AOJ should take all necessary steps to obtain complete service personnel records and/or information from the Veteran's Florida Army National Guard service pertaining to whether he and his unit were mobilized/ordered to full-time service in 1998, allegedly in response to a state of emergency related to Hurricane George relief. 2. Obtain the Veteran's VA treatment records for the period from July 2021 to the Present and associate them with the electronic claims file. 3. Schedule the Veteran for a VA examination for his claimed right and left hip disabilities. The examiner must review the claims file. The examiner is asked to identify a diagnosis for any left and/or right hip disability present at any time during the relevant appeal period (March 2013 to the Present). If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner's attention is directed to records of an August 2011 Social Security residual functional capacity report stating that X-rays show mild DJD of the hip, a March 2015 consultation report of a chiropractic physician diagnosing degenerative joint disease and greater trochanteric bursitis of both hips, and a November 2018 VA treatment record noting that X-rays of the hips showed bilateral degenerative changes. The examiner is asked to provide a response to the following for any left or right hip disability identified in response to the above inquiry: a. Is the hip disability at least as likely as not (50 percent or greater probability) related to service, including the left hip pain and occasional popping noted in a December 2006 Medical Examination Board consultation report? b. Is the hip disability at least as likely as not proximately due to his service-connected knee disabilities? c. Is the hip disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected knee disabilities? In responding to subparts b & c, the examiner's attention is directed to the December 2006 medical examination Board consultation report indicating that his left lateral hip pain may be related to knee problems causing asymmetry of mechanical function. A clear rationale must be provided for any opinions or conclusions stated. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the disabilities under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit detailed information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after the joint is repeatedly used over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the expected additional impairment due to flare-ups and repeated use based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also elicit information from the Veteran about how his service-connected knee disabilities affect his day-to-day functioning, in order to provide an opinion as to how the knee disabilities affect his ability to perform occupational tasks (e.g., such as standing limited to X hours per day, sitting limited to Y hours per day, bending/crawling limited to Z hours, etc....). A clear rationale should be provided for any opinion or conclusion stated. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit detailed information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after the joint is repeatedly used over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the expected additional impairment during flare-ups and following repeated use based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must provide an opinion as to the likelihood that the Veteran's described neurological symptoms of the left arm/hand are related to his service-connected left shoulder degenerative joint disease. Specifically, the examiner should address the following: a. Is it at least as likely as not that the Veteran's left-shoulder degenerative joint disease proximately caused the Veteran's left arm/hand numbness? b. Is it at least as likely as not that the Veteran's left-shoulder degenerative joint disease aggravated the Veteran's left arm/hand numbness beyond its natural progression? The examiner should also elicit information from the Veteran about how his service-connected left shoulder disability affects his day-to-day functioning, in order to provide an opinion as to how the left shoulder disability affects the Veteran's ability to perform occupational tasks (e.g., limitations with reaching, lifting, etc....). A clear rationale should be provided for any opinion or conclusion stated. 5. After completing the above, and conducting any further development deemed necessary in light of the expanded record, readjudicate the issues of entitlement to service connection for left and right hip disabilities and a right shoulder disability, entitlement to increased disability ratings for service-connected left and right knee disabilities and a higher initial disability rating for service-connected left shoulder degenerative joint disease, and entitlement to a TDIU. If any of the benefits sought are not granted to the Veteran's satisfaction, issue the Veteran and his representative a supplemental statement of the case before returning the appeal to the Board, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.