Citation Nr: 21072351 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-15 183 DATE: December 2, 2021 ORDER Entitlement to service connection for a right hip disability is denied. REMANDED Entitlement to service connection for varicose veins of the bilateral lower extremities is remanded. Entitlement to service connection for a bilateral foot condition, claimed as residuals of cold exposure is remanded. Entitlement to service connection for benign prostatic hypertrophy (BPH) is remanded. FINDING OF FACT The Veteran's right hip disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, including his 1961 right hip contusion and March 1968 motor vehicle accident. CONCLUSION OF LAW The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from January 1959 to January 1963, and with the Army from August 1963 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were previously remanded by the Board in an August 2020 decision for further development. As for the claim of service connection for a right hip disability, for the reasons noted below, the Board finds that the RO has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). However, as to the remaining claims under appeal, the Board finds that the August 2020 directives were not substantially complied with and, as will be discussed further, an additional remand is necessary. Id. 1. Entitlement to service connection for a right hip disability The Veteran contends that he injured his right hip in Germany in 1968 after a vehicle he was in rolled over. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active-duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active-duty service. 38 C.F.R. § 3.303 (d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). The first question for the Board is whether the Veteran has a chronic disease that was shown as chronic in service, manifested within one-year of his separation from service, or was noted in service with attributable continuity of symptomatology. The Board concludes that, while the Veteran has a diagnosis of degenerative arthritis of the right hip, which is a chronic disease under 38 C.F.R. § 3.309 (a), it was not shown as chronic in service or within the presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran's service treatment records contain a January 1961 complaint related to a compulsive right hip. The Veteran stated that during physical training, he fell and hurt his hip. He also stated that the butt of a rifle hit his right hip when he fell. The treatment record noted that the right hip was bruised with some swelling. It was recommended that the Veteran rest and apply heat. The Veteran's January 1963 separation examination did not note any diagnoses or defects related to his right hip. Additionally, an August 1963 reenlistment examination for the Marines is negative for any complaints related to the right hip. The Veteran's service treatment records for the Army do not include any complaints of or treatment related to the right hip. However, the records do note a March 1968 motor vehicle accident where the Veteran was hospitalized for "multiple bony contusions." Although the Veteran's service treatment records note the January 1961 right hip contusion and March 1968 accident, his post-service VA treatment records do not include any complaints of or treatment for the right hip until August 2013, nearly 30 years after the Veteran's separation from service, when an x-ray revealed mild degenerative changes on both the right and left hips. The VA treatment records do not contain any treatment for the claimed right hip disability. The Veteran was afforded a VA examination for his right hip in August 2013. The examiner diagnosed the Veteran with a right hip contusion, resolved, with no residuals. The examiner also noted that imaging studies documented degenerative arthritis. The Veteran reported that while in service, a truck rolled over injuring his right hip. He further stated that since that injury, he has had increasing pain and stiffness in the right hip. The examiner opined that the Veteran's right hip disability was less likely than not incurred in or caused by his service. The rationale provided is that the Veteran's records do not document chronicity of the claimed condition during and since the Veteran's separation from service. The examiner explained that there was only one complaint in 1961 for the right hip, and the August 1963 Army entrance physical examination is silent for a right hip condition. The examiner further noted that the Veteran's VA treatment records are silent for a right hip condition. The Board notes, however, that this opinion was found to be inadequate by the Board in a February 2018 remand as the examiner did not consider the Veteran's reports of a right hip injury during his 1968 vehicle accident. An additional VA examination was conducted in July 2021. The examiner diagnosed the Veteran with degenerative arthritis of the right hip and chronic hip strain. The Veteran stated that his right hip disability began in 1967 after a vehicle he was in flipped over and he was hospitalized for over one week. The examiner opined that the Veteran's right hip disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided is that the only reference in the Veteran's records regarding a right hip condition is in 1961 when he received a contusion to the right hip with the butt of a rifle. The examiner also considered the Veteran's lay statement about a vehicle accident where he injured his right hip and was hospitalized for over one week but noted that there is no further mention as to any right hip condition or evaluation. The examiner further stated that there is no documentation of any bony injury during these episodes in service and they were likely soft tissue injuries. These soft tissue injuries are unlikely to cause any chronic arthritis though they could cause a chronic soft tissue anomaly resulting in chronic hip pain. However, here, the Veteran's hip osteoarthritis and strain are likely due to normal wear or tear of aging, as his hip osteoarthritis is a bilateral condition. The Board finds this opinion adequate and probative as it is based on an accurate medical history and provides an explanation that contains clear conclusions with supporting data. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has considered the statements offered by the Veteran in July 2013 and March 2017 that his right hip condition started in service and he has had problems since service. The Board finds the Veteran is competent and credible; however, as a lay person, he has not shown that he has specialized training sufficient to render an opinion as to whether his degenerative arthritis of the hip is due to his 1961 right hip contusion or his 1968 accident. The issue is medically complex and requires knowledge and interpretation of complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Consequently, the Board gives more probative weight to the July 2021 VA examiner's opinion as it is based on a careful and thorough review of all the evidence contained in the Veteran's claims file. Based on the foregoing, the Board finds that the preponderance of the evidence is against finding that the right hip disability was chronic during service, manifested to a compensable degree within a year of service, or was established by a showing of continuity of symptomatology after service. The probative evidence of record indicates that the in-service right hip injury resolved without any permanent residuals. During his nearly 20-year career in the Marines and the Army, the Veteran only had one documented complaint related to his right hip in 1961. Thereafter, his claims file does not include any notations regarding the right hip until August 2013 when an x-ray revealed arthritis of the right hip. Although the Veteran contends that he injured his right hip in 1968 and has had right hip problems since that time, the evidence of record does not support a finding that his right hip has been manifested by a continuity of symptomatology as the Veteran continued to serve in the Army without incident for more than 10 years after his accident and did not seek treatment or complain of right hip symptoms after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the Veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Accordingly, service connection for a right hip disability on a presumptive basis is not warranted. Service connection for a right hip condition may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's right hip disability and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The July 2021 VA examiner opined that the Veteran's current right hip disability is less likely than not related to the 1961 right hip contusion or 1968 accident. The examiner noted that the Veteran has degenerative changes of both the right and left hips indicating that his right hip disability is due to normal wear and tear of aging. The examiner also noted that the Veteran's in-service injuries were soft tissue injuries that are unlikely to lead to chronic arthritis. As previously noted, the Board finds the examiner's opinion probative. See Nieves-Rodriguez, 22 Vet. App. at 304-305. Furthermore, the Veteran has offered no competent medical evidence to challenge the probative opinion offered by the July 2021 VA examiner. As the evidence is against finding that the Veteran's current right hip disability is related to the in-service right hip injuries, the Board finds that service connection for a right hip disability must be denied. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine does not apply. Gilbert, 1 Vet. App. at 54; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 1. Entitlement to service connection for varicose veins of the bilateral lower extremities is remanded. The Veteran contends that he has a diagnosis of varicose veins that is attributable to a decade as a drill instructor in the Army. See October 2017 Statement in Support of Claim. The July 2021 VA examiner opined that the Veteran does not have a current diagnosis of varicose veins as the examination did not find any clinical evidence to support a diagnosis. However, the "problem list" included in the Veteran's VA treatment records notes a diagnosis of varicose veins. The Board notes that a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, the Board finds that an addendum medical opinion is required to determine whether the Veteran has had a diagnosis of varicose veins at any time during the pendency of the appeal, and if so, whether it is at least as likely as not related to the Veteran's duties as a drill instructor during service. 2. Entitlement to service connection for a bilateral foot condition, claimed as residuals of cold exposure is remanded. The Veteran contends that he has a bilateral foot condition related to residuals of cold exposure in Korea and that he has had problems with his feet since active duty. The Veteran's claims file contains multiple complaints related to his feet. During a February 1980 VA examination, the Veteran stated that he experienced chemical burns on his feet and complained that he experienced discomfort described as burning or itching. During an April 1988 VA examination, the Veteran stated that his feet were getting worse with symptoms of a burning sensation and he developed small nodules, small blisters, and welts that resulted in sore feet all the time. The examiner noted that the Veteran had several small cysts on the soles of his feet. The Veteran's VA treatment records contain several complaints related to his feet. In May 2001, the Veteran's physician noted that the Veteran complained of paresthesias. In September 2001, the Veteran complained of foot pain. He completed an electromyography test in December 2001 which was negative for evidence of peripheral neuropathy. In May 2011, the Veteran was afforded a VA examination for his claimed bilateral foot condition. He stated that he began having problems with his feet secondary to a cold weather injury in Korea. He further stated that his feet become hard on the plantar aspect, he has leg cramps, and he has foot sores. The examiner opined that the Veteran's claimed condition is less likely than not caused by or the result of his service as there is no evidence of cold weather injuries and his VA treatment records do not reveal any complaints or treatment related to cold weather residuals. His VA treatment records include June 2015 and July 2015 reports of neuropathy on the bottom of the feet. In January 2018, he again reported his foot discomfort. In January 2019, the Veteran complained of neuropathy on his feet again claiming that he believes it is a residual of frozen feet. The Veteran again complained of issues related to his chronic foot discomfort related to cold injury residuals during a February 2020 podiatry appointment. Most recently, the Veteran was afforded a VA examination in July 2021. The Veteran contended that he was exposed to cold weather in Korea resulting in numbness of his feet and distal lower extremities. The examiner noted that 2018 x-rays revealed right and left foot osteoarthritis, but found no evidence of diagnoses pertaining to cold injuries. The examiner suspected peripheral neuropathy, but opined that it is unlikely a sequela of a cold injury. Additionally, the examiner found that the Veteran's x-rays findings are unlikely related to cold injuries and are more likely due to aging. During a July 2021 VA examination for varicose veins, the examiner diagnosed the Veteran with peripheral vascular disease due to the Veteran's reported symptoms of poor circulation in his lower legs and complaints of numbness to his feet if he stands for too long. The Board finds that the July 2021 VA examiners did not adequately address or consider all the evidence of record, and whether the Veteran's reported symptoms of bilateral foot numbness and discomfort are related to his service-connected polymorphous, started in service and continued after service, or are possibly related to Agent Orange exposure. The evidence of record clearly demonstrates that the Veteran has complained of numbness to his feet since at least February 1980, within a year of his separation from service. The Board finds that a more thorough opinion is needed to determine if the Veteran's reported symptoms are related to his service-connected polymorphous, a diagnosis of peripheral neuropathy or peripheral vascular disease, or reach a level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Additionally, an examiner must determine if these symptoms are related to his service, including residuals of a cold injury or Agent Orange exposure. 3. Entitlement to service connection for BPH is remanded. The Veteran contends that he has a diagnosis of BPH that had it onset in service. See March 2017 VA Form 9. Alternatively, he contends that his prostate condition is due to Agent Orange exposure. See December 2013 Statement in Support of Claim. The Veteran's service treatment records show that he was first assessed with an "enlarged and boggy" prostate in July 1961. In May 1962, he was diagnosed with prostatitis. Thereafter, in June 1965, he complained of "prostate trouble." During an April 1988 VA examination, the examiner noted that the Veteran's prostate was Grade I and benign in consistency. The Veteran was afforded a VA examination in August 2013 for his claimed BPH. The examiner confirmed the Veteran's diagnosis of BPH, but opined that the condition is less likely than not caused by or the result of his service because "BPH remains incompletely understood." The February 2018 Board remand found the opinion inadequate and directed the RO to obtain another medical opinion. In July 2021, the VA examiner again confirmed the Veteran's diagnosis of BPH since 1975. However, the examiner opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's service treatment records reference multiple visits for urethritis and possibly one episode of prostatitis, but found that these incidents are unrelated to BPH, a condition usually due to normal aging. An addendum medical opinion was completed in September 2021 where the examiner again opined that the Veteran's BPH is less likely than not related to his service as BPH is a diagnosis of aging with etiology related to genetics and family history, and likely diet high in animal protein and saturated fats. The examiner also stated that linking urethritis to BPH is unfounded and likely unrelated given the complexity of the Veteran's history. The Board finds that both the July 2021 opinion and September 2021 opinion are inadequate as neither opinion addresses the Veteran's July 1961 diagnosis of an enlarged prostate and whether the Veteran's current diagnosis of BPH is the same condition or a continuation of his in-service condition. Additionally, the examiners did not consider the April 1988 notation for a Grade I prostate gland with benign consistency, and whether this is an indication of the continuation of the Veteran's July 1961 diagnosis. Furthermore, none of the VA opinions of record have addressed whether the Veteran's BPH is related to Agent Orange exposure. In September 2014 Third Party Correspondence, Agent Orange exposure was conceded as the Veteran was stationed near Camp Hovey which was near the Korean DMZ. Thus, the Board finds that a new medical opinion is needed to determine whether the Veteran's July 1961 diagnosis of an enlarged prostate is the same as his current diagnosis of BPH and/or a continuation of his July 1961 diagnosis. Additionally, an addendum medical opinion is needed to determine whether the Veteran's BPH is related to his Agent Orange exposure. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of his claimed varicose veins. The examiner must review the claims file. The examiner must opine whether the Veteran has had a diagnosis of varicose veins at any time during the pendency of the appeal, even if the condition resolved prior to adjudication of the claim. The examiner is asked to consider the Veteran's VA treatment records which note varicose veins on the "problem list." If the examiner finds that the Veteran has a diagnosis of varicose veins or has had one at any point during the pendency of the claim, the examiner is asked to opine whether it is at least as likely as not related to service, including his duties as a drill instructor while in the Army. Any opinion expressed should be accompanied by a complete rationale. 2. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of his claimed bilateral foot condition. The examiner must review the claims file. The examiner is asked to consider whether the Veteran's reported symptoms of numbness are related to a diagnosis of peripheral neuropathy, peripheral vascular disease, residuals of cold exposure, or his service-connected polymorphous. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms, to include numbness of the feet, that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a) Is the Veteran's bilateral foot condition at least as likely as not related to service, including his exposure to cold weather in Korea? (b) Is it at least as likely as not that the Veteran's bilateral foot condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (c) Is the Veteran's bilateral foot condition at least as likely as not related to in-service exposure to Agent Orange? The Board notes that early-onset peripheral neuropathy is an enumerated disability under 38 C.F.R. § 3.309 (e). (d) Is the Veteran's bilateral foot condition at least as likely as not related to or proximately due to service-connected polymorphous or aggravated beyond its natural progression by his service-connected polymorphous? When rendering an opinion, the examiner is asked to specifically consider the Veteran's contentions regarding his feet contained in the February 1980 VA examination, the April 1988 VA examination, the May 2011 VA examination, the 0VA treatment records, the July 2021 VA examination, and the September 2021 VA addendum opinion. Any opinions expressed should be accompanied by a complete rationale. 3. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of his benign prostatic hypertrophy. The examiner must review the claims file. (a) The examiner is asked to opine as to whether it is at least as likely as not that the Veteran's current diagnosis is the same condition or a continuation of his in-service diagnosis of an enlarged prostate in July 1961. (b) The examiner is also asked to opine as to whether his prostate condition is at least as likely as not related to his exposure to Agent Orange in service. When rendering an opinion, the examiner is asked to consider the Veteran's service treatment records which include the July 1961 diagnosis of an enlarged prostate, the May 1962 diagnosis of prostatitis, and the June 1965 notation for prostate trouble. Additionally, the examiner is asked to consider the April 1988 VA examination where the examiner indicated the Veteran's prostate gland was Grade I and benign in consistency. Any opinions expressed should be accompanied by a complete rationale. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.