Citation Nr: 21076894 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-37 135 DATE: December 28, 2021 ORDER Entitlement to service connection for a right hip disability is granted. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for restless leg syndrome, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The evidence in in equipoise as to whether the Veteran has a right hip disability. 2. The evidence is in equipoise as to whether the right hip disability is related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right hip disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from February 1977 to February 1980, from March 1982 to April 1996, and apparently from June 2000 to September 2010, with additional service in the Army National Guard. In September 2019, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the electronic claims file. In February 2020, February 2021, and July 2021, the Board remanded the claims for further development. 1. Entitlement to service connection for a right hip disability Governing law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit held that where pain alone results in functional impairment, even if there is no identified underlying diagnosis, pain alone can constitute a disability. The Federal Circuit limited its holding, stating, "We do not hold that a veteran could demonstrate service connection simply by asserting subjective pain. To establish the presence of a disability, the veteran will need to show that her pain reaches the level of functional impairment of earning capacity." In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Analysis There is conflicting medical evidence on whether the Veteran has a current disability. VA treatment records do not reveal a current right hip disability. A September 2020 VA examination report reflects no diagnosis of a right hip disability. The September 2020 VA examiner noted that the right hip X-rays were negative for pathology and that there are no objective findings to support the subjective reporting of right hip pain. The September 2020 VA examiner, however, noted that the range of motion could not be done because the Veteran reported extreme stiffness, mild weakness, and severe pain in the hips. In February 2021, the Board remanded the claim to clarify whether the Veteran had functional impairment due to right hip pain. In an August 2021 VA medical opinion, a physician opined that it is at least as likely as not that the Veteran's right hip disability rises to the level of functional impairment and continues to exist during the appeals period. The doctor noted that the Veteran reported hip pain in service that continued to this day. The clinician stated that the Veteran's statements are credible and corroborated by medical records. The physician added that the Veteran is competent to report the symptoms and status of his condition. The doctor stated that clinical history, physical exam, and mechanism of injury falling into pothole and overuse are consistent with the current diagnosis. The clinician also noted that imaging in September 2020 showed arthritis and enostosis and that the September 2020 VA examination report documented the continued pain symptoms, use of assistive device, and functional limitation. In a September 2021 VA medical opinion, a VA physician assistant stated that the functional impact of the right hip disability is difficulty with standing or walking more than 30 minutes due to pain in occupational setting. The clinician added that there is no functional limitation in sedentary employment. Pursuant to Saunders, the question is whether right hip pain reaches the level of functional impairment of earning capacity. As for the right hip pain, stiffness, and weakness, he is competent to report these symptoms and the Board finds him credible. The Board notes that the VA doctor who rendered the August 2021 VA medical opinion noted that X-rays revealed arthritis and enostosis. These findings, however, pertain to the left hip. Nonetheless, both clinicians who rendered medical opinions in August and September 2021 found functional impairment. The evidence is in equipoise as to whether the right hip pain reaches the level of functional impairment of earning capacity. Thus, Hickson element (1), current disability, is met. Turning to Hickson element (2), in-service disease or injury, the Veteran's service treatment records show that in December 2004 he reported that he had had persistent radicular low back pain since October 2004 when he stepped on uneven terrain while on a run. It was noted that pain radiated into the right hip. The assessment was persistent mechanical low back pain. In January 2005, it was noted that the pain was in the right lateral hip area. There was pain with full range of motion in flexion, abduction, and rotation. The diagnosis was lumbar facet osteoarthritis. In April 2006, the Veteran reported that his right hip felt like it gets stuck. In May 2006, the Veteran reported that he had right low back pain radiating into his hip for two years. More specifically, he complained of dull right hip pain. The assessment was right hip pain. X-rays of the right hip were normal. In October 2006, the Veteran reported right hip joint pain and stiffness after activity. The assessment was lumbago. Based on the complaints of right hip pain and stiffness, Hickson element (2), in-service disease or injury, is satisfied. There is conflicting medical evidence on whether any right hip disability is related to active service. The September 2020 VA examiner opined that it is less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner's basis was that the Veteran did not have a right hip disability. In a May 2021 VA medical opinion, a doctor opined that it is less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The physician noted that February 1996 and January 2004 physical examination reports and reports of medical history do not reveal physical exam findings or history of ongoing acute or chronic treatment of a right hip condition. The doctor noted that X-rays of the right hip in September 2020 were normal. The physician indicated that a medical-record review did not reveal continuous ongoing medical treatment or aggravation of an acute or chronic right hip condition since the time of discharge from active military service to the present day. The doctor concluded that the right hip disability was less likely than not related to his service or had its onset in service. The Board notes that the physician did not address the various treatment record dated from 2004 to 2006 regarding right hip pain. In the August 2021 VA medical opinion, the doctor opined that it is at least as likely as not that the right hip disability is etiologically related to the Veteran's military service. The physician noted the relevant service treatment records and the Veteran's testimony about his right hip pain. The doctor added that a February 2011 treatment record corroborated the Veteran's reporting of how he injured his right hip. The Board notes that the physician has provided a thorough basis for the opinion and addressed relevant treatment records. In the September 2021 medical opinion, a physician assistant opined that it is less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The clinician stated that there was no information in the service treatment records to indicate that the Veteran developed a chronic right hip condition during service. The medical professional added that there is no nexus because of the missing elements of origin and chronicity. The Board notes that the physician assistant did not specifically address the findings in the service treatment records from 2004 to 2006. To summarize, one negative medical nexus opinion is predicated on the lack of a current disability and two negative medical nexus opinions do not discuss the relevant service treatment records in detail. Only one medical opinion, the favorable one, is predicted on the existence of a current disability and addresses the relevant service treatment records in detail. In light of the above, the evidence is in equipoise as to whether the current right hip disability is related to active service. Hence, Hickson element (3), medical nexus, is satisfied. In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for a right hip disability. The benefit sought on appeal is accordingly allowed. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND A September 2020 VA medical opinion did not adequately address whether the right knee disability was caused by a service-connected disability. Therefore, another addendum opinion is necessary. The Veteran's first DD Form 214 reflects that he had active duty from February 1977 to February 1980. His second DD Form 214 reveals that he had active duty from March 1982 to April 1996. A third DD Form 214 shows that his period of active service was from April 1983 to September 2010. A report of separation and record of service indicates that the Veteran had Army National Guard service from April 1996 to February 1997. A February 2006 Army National Guard retirement points history statement shows that starting in April 1996 the Veteran was an Army National Guard unit member who did not earn many active duty points until June 2000. That statement indicates that starting in June 2000 he was on Army National Guard active duty under Title 32 of the United States Code in a state-controlled position. This statement strongly suggests that his periods of active duty were from February 1977 to February 1980, from March 1982 to April 1996, and apparently from June 2000 to September 2010. Clarification of the Veteran's periods of active duty is necessary. In July 2021, the Board remanded the issue of entitlement to service connection for restless leg syndrome for a medical opinion to address, among other things, his contention that he began feeling weakness in his legs after a fall in 1984. An August 2021 VA medical opinion did not address this specific contention. Thus, the RO did not comply with the directives of the July 2021 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). An addendum opinion is necessary. In a September 2020 VA medical opinion, a VA examiner stated that restless leg syndrome can be a lifelong condition and that it can be found in families. Thus, the examiner indicated that restless leg syndrome can be a genetic disability. Service connection can be granted for a familial disease that was initially manifested itself in service or was aggravated by service. In other words, service connection cannot be denied merely on the basis that a veteran has the genetic trait for the disease. See VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 82-90 (July 18, 1990). January 1977 and February 1982 entrance examination reports does not show that restless leg syndrome was noted on entrance. There is no indication that the Veteran underwent an entrance examination when he returned to active duty as a member of the Army National Guard. Therefore, the Veteran is entitled to the presumption of soundness as to restless leg syndrome. A VA medical opinion addressing whether the restless syndrome preexisted a period of active duty is necessary. Given that service connection has been granted for bilateral hip disabilities, a VA medical opinion is necessary regarding any relationship between the bilateral hip disabilities and restless leg syndrome. The RO should obtain any additional records from the VA New Jersey Health Care System for the period from June 2020 to the present. The matters are REMANDED for the following action: 1. Verify the Veteran's periods of active duty either in the Army or the Army National Guard for the period from March 1982 to September 2010. 2. Ask the Veteran to identify all treatment for his right knee disability, restless leg syndrome, bilateral hip disabilities, lumbar spine disability, and bilateral radiculopathy of the lower extremities. Obtain all identified records. Obtain the Veteran's treatment records from the VA New Jersey Health Care System for the period from June 2020 to the present. 3. After the development in 1 and 2 is completed, RO should arrange for the Veteran's electronic claims file to be reviewed by the VA doctor who prepared the August 2021 VA medical opinion for the preparation of an addendum regarding the nature of the restless leg syndrome. If that clinician is unavailable, arrange for the claims file to be reviewed by another medical professional. The Veteran should only be scheduled for another examination if the VA examiner or new medical professional deems it necessary. The clinician must opine on whether it is clear and unmistakable (undebatable) that the restless leg syndrome preexisted the Veteran's service from February 1977 to February 1980. If the clinician finds the restless leg syndrome did clearly and unmistakably (undebatably) preexist his service from February 1977 to February 1980, the clinician must opine whether it is clear and unmistakable (undebatable) that the restless leg syndrome was not aggravated by his service from February 1977 to February 1980. If the clinician finds that the restless leg syndrome did not clearly and unmistakably preexist his service from February 1977 to February 1980, the clinician must opine whether it is at least as likely as not that the restless leg syndrome had its onset during his service from February 1977 to February 1980 or is otherwise etiologically related to his service from February 1977 to February 1980. The clinician must opine on whether it is clear and unmistakable (undebatable) that the restless leg syndrome preexisted the Veteran's service from March 1982 to April 1996. If the clinician finds the restless leg syndrome did clearly and unmistakably (undebatably) preexist his service from March 1982 to April 1996, the clinician must opine whether it is clear and unmistakable (undebatable) that the restless leg syndrome was not aggravated by his service from March 1982 to April 1996. If the clinician finds that the restless leg syndrome did not clearly and unmistakably preexist his service from March 1982 to April 1996, the clinician must opine whether it is at least as likely as not that the restless leg syndrome had its onset during his service from March 1982 to April 1996 or is otherwise etiologically related to his service from March 1982 to April 1996, to include feeling weakness in his legs following a second fall in 1984, numbness in the left leg in May 1985, and having an anxious feeling in his legs arising in 1991 due to doing a lot of driving during service as a recruiter. The clinician must opine on whether it is clear and unmistakable (undebatable) that the restless leg syndrome preexisted the Veteran's service from June 2000 to September 2010. If the clinician finds the restless leg syndrome did clearly and unmistakably (undebatably) preexist his service from June 2000 to September 2010, the clinician must opine whether it is clear and unmistakable (undebatable) that the restless leg syndrome was not aggravated by his service from June 2000 to September 2010. If the clinician finds that the restless leg syndrome did not clearly and unmistakably preexist his service from June 2000 to September 2010, the clinician must opine whether it is at least as likely as not that the restless leg syndrome had its onset during his service from June 2000 to September 2010 or is otherwise etiologically related to his service from June 2000 to September 2010. The clinician must opine on whether it is at least as likely as not that the restless leg syndrome was (1) caused by or (2) aggravated by the service-connected bilateral hip disabilities. If the clinician finds that the restless leg syndrome was aggravated by the service-connected bilateral hip disabilities, then the medical professional should quantify the degree of aggravation. 4. After the development in 1 and 2 is completed, RO should arrange for the Veteran's electronic claims file to be reviewed by the VA doctor who prepared the August 2021 VA medical opinion for the preparation of an addendum regarding the nature of the right knee disability. If that clinician is unavailable, arrange for the claims file to be reviewed by another medical professional. The Veteran should only be scheduled for another examination if the VA examiner or new medical professional deems it necessary. The clinician must opine on whether it is at least as likely as not that the right knee disability was (1) caused by or (2) aggravated by the service-connected bilateral hip disabilities, the lumbar spine disability, or the bilateral radiculopathy of the lower extremities. If the clinician finds that the right knee disability was aggravated by the service-connected bilateral hip disabilities, the lumbar spine disability, or the bilateral radiculopathy of the lower extremities, then the medical professional should quantify the degree of aggravation. 5. After development above has been completed, the RO should readjudicate the Veteran's claims. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy fo his representative, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.