Citation Nr: 21074126 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-41 100 DATE: December 14, 2021 REMANDED Entitlement to service connection for a right hip disability, to include as secondary to the service-connected lumbar spine, left hip, and left knee disabilities is remanded. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected lumbar spine, left hip, and left knee disabilities is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to November 19, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1961 to August 1962 with additional Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In July 2021, the Board most recently remanded these matters to the RO for further development. As an initial matter, in the October 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran entitlement to a TDIU from November 19, 2019. However, as entitlement to a TDIU arose during the pendency of the Veteran's increased lumbar spine rating claim, as discussed in the July 2021 Board decision, entitlement to a TDIU prior to November 19, 2019, remains before the Board under Rice v. Shinseki, 22 Vet. App. 447 (2009). Additionally, after issuance of the October 2021 Supplemental Statement of the Case (SSOC), new VA medical records were added to the Veteran's claims file. A waiver of initial AOJ review of this evidence from the Veteran or his representative is not of record; however, there is no prejudice to the Veteran as these records are not relevant to his claims on appeal and because his claims are remanded herein. The Board notes that upon remand, the AOJ will review this new evidence in the first instance during readjudication of the claim. 1. Entitlement to service connection for a right hip disability, to include as secondary to the service-connected lumbar spine, left hip, and left knee disabilities and entitlement to service connection for a right knee disability, to include as secondary to the service-connected lumbar spine, left hip, and left knee disabilities Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record to decide the Veteran's claim. First, there appears to be outstanding private treatment records that may be relevant to the Veteran's claims that have not been associated with the claims file. In this regard, the Veteran submitted to VA a General Release for Medical Provider Information (VA Form 21-4142a) for private treatment and listed treatment from Dr. Pitt (from 2012 to 2015 and from 2021 to present) and Dr. Jones. See July 2021 Correspondence. However, the AOJ did not attempt to obtain these outstanding private treatment records nor did the AOJ provide an explanation for its failure to do so. As such, a remand is warranted for the AOJ to obtain the identified, outstanding private treatment records. Second, at the December 2018 Board hearing, the Veteran testified that he had received VA treatment since the 1980s. See December 2018 Board hearing transcript, pp 12, 16. However, the record only contains VA treatment records from 2002. Therefore, on remand, the AOJ should also ensure that all VA treatment records are associated with the claims file. Next, the Board finds that a remand is warranted for the Veteran's right hip and knee claims to clarify the conflicting medical evidence of record. In this regard, in August 2021 and October 2021, a VA clinician opined that the Veteran's claimed conditions were not secondary to his service-connected lumbar spine, left hip, and left knee disabilities, to include from an alteration in gait, after finding that the Veteran does not have a level of severity that would support an injury resulting in a major muscle or nerve damage that would cause partial or complete paralysis or a leg length discrepancy that would cause an altered Trendelenburg gait. The clinician also explained that the Veteran's has degenerative arthritis of the right hip and that degenerative arthritis is due to the cumulative effect of the wear and tear process over many years. The VA clinician further noted that although the Veteran was diagnosed with a bilateral knee strain in November 2019, the April 2021 VA examination does not reflect a right knee diagnosis while right knee x-rays in November 2021 were negative. On the other hand, in April 2021, a different VA clinician provided positive secondary service connection nexus opinions for the Veteran's left hip and knee disabilities explaining that it is well known in the medical community that alteration in the kinetic musculoskeletal chain can cause wear and tear on the accompanying joints. Specifically, the clinician explained that the back, ankle, hips, and knees are weight bearing joints and that if there is alteration in any of the weight bearing joints, pain and weakness can occur to the adjoining joint. Although the April 2021 VA opinions concern the Veteran's left hip and knee disabilities, the VA clinician's rationale appears relevant to the issue of whether the Veteran's service-connected left knee, left hip, and/or or lumbar spine disabilities alter his gait, which, in turn, impacts any right knee and hip disability. Moreover, the available treatment records reflect varying findings concerning whether the Veteran has an abnormal gait. See e.g., July 2009 VA spine examination (indicating that the Veteran has an abnormal gait); February 2012 medical record (reflecting that the Veteran's gait is slightly antalgic to the right); January 2020 treatment record (reflecting that the Veteran's gait pattern overall is slightly forward flexed but not antalgic and there is no Trendelenburg component). Accordingly, the Board finds that a remand is warranted for a VA opinion that can reconcile the conflicting medical evidence of record. Additionally, on remand, the VA examiner should clarify whether the Veteran has a right knee disability. In this regard, although the November 2019 VA examination reflects that the Veteran was diagnosed with a bilateral knee strain the examination report, under the Veteran's medical history, indicates that he does not have a right knee condition. Moreover, although the Veteran underwent a subsequent knee VA examination in April 2021, that examination was scheduled for TDIU purposes and only addressed the Veteran's service-connected left knee. As such, on remand, a VA examiner should opine whether the Veteran has a right knee disability for VA purposes. 2. Entitlement to a TDIU prior to November 19, 2019 As discussed in the July 2021 Board remand, this TDIU issue is inextricably intertwined with the Veteran's claims for service connection being remanded and, thus, the Board will defer consideration of the appeal with regard to entitlement to a TDIU prior to November 19, 2019. See Harris v. Derwinski,1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records, to include any VA treatment records from 1980 to 2002. The Veteran has reported receiving VA treatment since the 1980s at VA Tuskegee. If the reported VA treatment is unavailable, such should be documented in the claims file. 2. Provide the Veteran with another opportunity to identify and submit any outstanding private treatment records relevant to his claims. In July 2021, he submitted a VA Form 21-4142 for private treatment and listed treatment from Dr. Pitt and Dr. Jones. Attempt to obtain and associate the identified, outstanding treatment records with the claims file and secure any necessary authorization from the Veteran if the above authorization form is outdated or incomplete. 3. Then, obtain an addendum opinion from an appropriate VA medical professional, who has not previously provided an opinion in this case, to determine the nature and origin of the Veteran's claimed right hip and right knee disabilities. The need for an examination of the Veteran in conjunction with the requested opinions is left to the discretion of the VA medical professional. The Veteran's claims file, to include a copy of this Remand, should be made available to and be reviewed by the examiner. The examiner should respond to the following: (a) The examiner should identify all diagnoses/disabilities associated with the Veteran's right knee during the appeal period. The Board notes that the Veteran underwent a VA knee examination in November 2019 where he was diagnosed with a bilateral knee strain, but the examiner also noted no right knee condition in the Veteran's medical history and also notes that although the Veteran underwent a VA knee examination in April 2021, that examination was only evaluating the Veteran's left knee disability for TDIU purposes. (b) If the examiner cannot identify a diagnosis/diagnoses associated with the Veteran's right knee or identify a diagnosis/diagnoses that encompass all the Veteran's symptomatology, the examiner should determine whether the Veteran's right knee pain and associated symptoms result in functional loss or impairment of earning capacity to the Veteran. Such impairment must be described in detail. The Board notes that evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. (c) If a diagnosis or functional impairment is not shown for the Veteran's right knee claim, it should be explained why this is so given the November 2019 VA examination listing that the Veteran had a bilateral knee strain. (d) For any identified right knee diagnosis, or if the examiner determines that the Veteran's right knee pain or symptomatology results in functional loss or impairment, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any such disability/pain/symptoms is (1) caused by OR (2) aggravated by the Veteran's service-connected lumbar spine, left knee, and/or left hip disabilities. In providing the above opinion, the examiner is asked to specifically ADDRESS the Veteran's contentions AND other evidence of record indicating that his service-connected left knee disability, left hip disability, and/or lumbar spine disability alter his gait, which, in turn, impacts any right knee disability. The examiner should DISCUSS how this contention/evidence relates to his claim. In this regard, the April 2021 VA examiner explained that that it is well known in the medical community that alteration in the kinetic musculoskeletal chain can cause wear and tear on the accompanying joints; that the back, ankle, hips, and knees are weight bearing joints; and that if there is alteration in any of the weight bearing joints, pain and weakness can occur to the adjoining joint. A February 2012 record, just prior to the appeal period, also indicates the Veteran's gait was slightly antalgic to the right. (e) For the Veteran's diagnosed right hip disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such is (1) caused by OR (2) aggravated by the Veteran's service-connected lumbar spine, left knee, and/or left hip disabilities. In providing the above opinion, the examiner is asked to specifically ADDRESS the Veteran's contentions AND other evidence of record indicating that his service-connected left knee disability, left hip disability, and/or lumbar spine disability alter his gait, which, in turn, impacts his right hip disability. The examiner should DISCUSS how this contention/evidence relates to his claim. In this regard, the April 2021 VA examiner explained that that it is well known in the medical community that alteration in the kinetic musculoskeletal chain can cause wear and tear on the accompanying joints; that the back, ankle, hips, and knees are weight bearing joints; and that if there is alteration in any of the weight bearing joints, pain and weakness can occur to the adjoining joint. A February 2012 record, just prior to the appeal period, also indicates the Veteran's gait was slightly antalgic to the right. In rendering the above secondary service connection opinions, the examiner should address BOTH the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's service-connected left knee, left hip, and lumbar spine disabilities did not cause his right hip and any right knee disability, the examiner should still address whether these service-connected disabilities could have worsened his right hip and any right knee disability. If aggravation is found, the examiner should quantify the degree of aggravation, if possible, and state whether there was a medically ascertainable increase in disability regardless of permanence. The examiner should provide a complete rationale for all opinions. A discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.