Citation Nr: A21020252 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 200121-61720 DATE: December 20, 2021 ORDER Entitlement to service connection for avascular necrosis of the left hip is granted. Entitlement to service connection for avascular necrosis of the left knee is granted. Entitlement to service connection for avascular necrosis of the right knee is granted. Entitlement to service connection for striae of all extremities and the trunk is granted. Entitlement to an initial compensable evaluation for hypertension is denied. Entitlement to an initial evaluation higher than 10 percent for right hip avascular necrosis is denied. REMANDED Entitlement to service connection for a left knee disorder other than avascular necrosis is remanded. FINDINGS OF FACT 1. Avascular necrosis of the left hip has been diagnosed during the appeal period and is caused by medication used to treat the service-connected kidney disorder. 2. Avascular necrosis of the left knee has been diagnosed during the appeal period and is caused by medication used to treat the service-connected kidney disorder. 3. Avascular necrosis of the right knee has been diagnosed during the appeal period and is caused by medication used to treat the service-connected kidney disorder. 4. Striae of the extremities and trunk was diagnosed during the appeal period and is caused by medication used to treat the service-connected kidney disorder. 5. During the appeal period, the Veteran's hypertension did not manifest in diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. Also, the Veteran did not both have a history of diastolic pressure predominantly 100 or more and require continuous medication for control. 6. Right hip flexion is not limited to 45 degrees or less and abduction is not limited to 10 degrees or less. CONCLUSIONS OF LAW 1. The criteria for service connection for avascular necrosis of the left hip have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for avascular necrosis of the left knee have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for avascular necrosis of the right knee have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for striae of the extremities and trunk have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for an initial compensable evaluation for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.104, Diagnostic Code (DC) 7101. 6. The criteria for an initial evaluation higher than 10 percent for right hip avascular necrosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 2008 until February 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the January 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. The Board hearing was held in July 2021 before the undersigned Veterans Law Judge. The Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Secondary service connection is also warranted for disability due to medication prescribed to treat a service-connected disability. 1. Entitlement to service connection for avascular necrosis of the left hip is granted. 2. Entitlement to service connection for avascular necrosis of the right knee is granted. 3. Entitlement to service connection for avascular necrosis of the left knee is granted. The Veteran alleges that she has avascular necrosis of the left hip and bilateral knees that is etiologically related to medication used to treat her service-connected kidney disorder. First, avascular necrosis of the left hip and bilateral knees has been diagnosed during the appeal period. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). April 2010 private records document the Veteran had avascular necrosis in the bilateral hips after workup and September 2019 X-rays showed a subtle lucency and sclerosis at the superior aspect of the left femoral head that may relate to mild underlying avascular necrosis. A June 2018 disability benefits questionnaire (DBQ) completed by Dr. WR, the Veteran's mother, documents the Veteran had avascular necrosis of the bilateral hips and bilateral knees. A May 2019 VA examiner also found that the Veteran had avascular necrosis of the bilateral hips and bilateral knees. The private records establish a history of left hip avascular necrosis and the current imaging studies show changes consistent with underlying avascular necrosis. Thus, there is evidence of left hip, right knee, and left knee avascular necrosis during the appeal period. Second, the evidence establishes that the avascular necrosis is secondary to prolonged steroid use required for treatment of the Veteran's service-connected kidney condition. Service connection for right hip avascular necrosis is already in effect for this reason, and the May 2019 VA examiner specifically stated that the avascular necrosis was a consequence of extended high-dose prednisone administration. In sum, the avascular necrosis of the left hip and bilateral knees is secondary to the service-connected kidney disorder and the claims are granted. 4. Entitlement to service connection for scarring/disfigurement, to include as secondary to service-connected kidney disorder. The Veteran alleges scarring and disfigurement in the form of stretch marks that are a side effect of high dose steroids used to treat the service-connected kidney disorder. See July 2021 hearing testimony. First, there is evidence of scarring/disfigurement in the form of striae, commonly referred to as stretch marks. An April 2009 private treatment record notes the Veteran had Cushingoid changes due to high dose steroids used to treat the service-connected kidney disorder that included abdominal striae. In a June 2018 DBQ, Dr. WR documented the Veteran had permanent striae associated with high dose steroid use, and examination showed striae on all extremities, as well as on the anterior and posterior trunk. A June 2019 VA examination report documented the Veteran had no scarring on her body at all, even though service connection is already in effect for a scar of the right hip. That examiner also failed to discuss the previously documented striae, and it is unclear whether the examiner knew to consider striae in addition to other forms of scarring. Overall, the 2019 examiner's findings are afforded no probative weight. The preponderance of the evidence shows striae of the skin. The evidence also establishes that the striae is due to Cushingoid changes due to high dose steroid use. As those steroids were required to treat the service-connected kidney disorder, entitlement to secondary service connection for the resulting striae is warranted and the claim is granted. Increased Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Where an appeal is based on an initial rating for a disability, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). 5. Entitlement to an initial compensable evaluation for hypertension is denied. The Veteran seeks an initial compensable evaluation for hypertension. Hypertension is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. The term "predominant" is not defined in the rating criteria. Merriam-Webster defines predominant to mean "being most frequent or common." See, e.g., "predominant," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. For the reasons that follow, the Veteran's hypertension has not more nearly approximated the criteria corresponding to a 10 percent rating. Of record is a June 2018 private DBQ completed by Dr. WR that was directly submitted by the Veteran. Dr. WR noted that hypertension had onset in service and cited to blood pressure readings from the time period the Veteran was initially diagnosed. Dr. WR documented that the Veteran did not have a history of diastolic blood pressure elevation predominantly 100 or more, but she did require continuous medication. Dr. WR recorded 3 current blood pressure readings of 117/79, 125/76, and 118/75. The Veteran underwent a VA examination in June 2019. That examiner also found that the Veteran did not have a history of diastolic blood pressure elevation predominantly 100 or more, but she did require continuous medication. That examiner recorded current blood pressure readings of 135/80, 135/85, and 135/80. The Veteran did not identify any current treatment providers related to her claim for hypertension on her December 2018 Fully Developed Claim and no additional records were submitted in the 90 day window after the Board hearing. At the Board hearing, the Veteran testified that her hypertension would spike if she did not take her medication, so she was careful to take her medication as prescribed. Otherwise, when asked about her current signs and symptoms she only reported the need to take daily medication. At the hearing, the Veteran's representative indicated that the Veteran would need to stop taking her medication to get an appropriate rating for hypertension. In rating hypertension under DC 7101, the Board may consider blood pressure readings taken while a veteran is using medication. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (holding that DC 7101 contemplates the effects of medication). The Veteran's rating is accurate even considering the effects of medication. Review of the evidence shows that the Veteran's hypertension is not manifested by a history of diastolic pressure predominantly 100 or higher. Dr. WC reviewed and commented on the Veteran's blood pressure readings taken near the time hypertension was initially diagnosed and found that the Veteran did not have a history of diastolic pressure predominantly 100 or higher. Those findings are consistent with the medical evidence of record and carry significant probative weight. Although the Veteran requires continuous medication for control, she does not meet the other criteria necessary for an initial 10 percent rating. Review of the available evidence also does not show current diastolic pressure predominantly 100 or higher or systolic pressure predominantly 160 or higher. In sum, the Veteran's hypertension does not more nearly approximate the criteria corresponding to a 10 percent rating and there is no reasonable doubt to be resolved. As the criteria for a 10 percent rating under DC 7101 are not met, a noncompensable rating is warranted. See 38 C.F.R. § 4.31. 6. Entitlement to an initial evaluation higher than 10 percent for right hip avascular necrosis is denied. The service-connected right hip avascular necrosis is evaluated at 10 percent under 38 C.F.R. § 4.71a, DC 5253, for impairment of the thigh. Under DC 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right hip avascular necrosis. In her June 2018 Fully Developed Claim, the Veteran did not identify any current treatment providers related to the right hip claim. The Veteran underwent a VA examination in June 2019. That examiner documented her report that she underwent a partial right hip replacement and had ongoing, intermittent pain. The examiner reported the Veteran denied flare-ups of the hip or thigh, and she also denied any functional loss or functional impairment of the right hip. Initial range of motion of the right hip was normal. Pain was noted on examination in active external rotation, but that pain did not cause functional loss. There was no evidence of pain in weight-bearing, non-weight bearing, or in passive motion. The Veteran was able to perform at least 3 repetitions without additional functional impairment. Although the Veteran was not being examined immediately after repetitive use over time or during flares, the examiner found that the examination was medically consistent with the Veteran's statements describing functional loss. The examiner also found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repetitive use over time or during flares. There was no other contributing factor of disability. At the July 2021 hearing, the Veteran reported right hip symptoms of pain, a rubbing sensation, and that her flexibility was not as great as it used to be since the partial hip replacement. She reported she had to be careful with heavy weight-bearing so as not to cause further injury and that there was a concern for future instability. She described limitations with squatting low and running, and she wore an insert in her shoe due to leg length discrepancy. She also reported difficulty sitting crisscross and putting on shoes. The Veteran's description of functional impairment does not more nearly approximate limitation of abduction to 10 degrees or less. The Veteran's report of difficulty sitting crisscross is contemplated by the 10 percent criteria for impairment of the thigh, cannot cross legs. Even considering the Veteran's lay reports of symptoms of difficulty running, the additional limitation reflected by the statements does not result in symptoms more nearly approximating limitation of abduction, motion lost beyond 10 degrees. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Veteran's description of difficulty squatting low and difficulty putting on shoes, when compared to Plate II at 38 C.F.R. § 4.71a (illustrating range of motion in flexion), does not more nearly approximate flexion limited to 45 degrees or less under DC 5252. Though there is concern for further instability, there was none present on objective examination and the Veteran did not describe current instability. The Board has also considered whether a higher evaluation is warranted under DC 5054 for hip resurfacing or replacement. Here, the Veteran is not shown to have a total hip replacement that would warrant the minimum 30 percent evaluation, nor is there evidence of moderately severe residuals of weakness, pain, or limitation of motion for an evaluation higher than 30 percent under DC 5054. The record does not indicate there is any other potentially applicable DC. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for right hip avascular necrosis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for a left knee condition other than avascular necrosis is remanded. This issue is remanded to correct a duty to assist error that occurred prior to the November 2019 rating decision on appeal. VA's duty to assist includes providing a medical examination or opinion when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, VA failed to obtain an adequate examination and remand is required. By way of background, the STRs show that the Veteran was involved in a motor vehicle accident in December 2008 after she had completed her entrance examination but prior to enlistment into active duty service. She reported symptoms of left knee pain associated with that event but was cleared for training later in December 2008. The STRs further show that in early January 2009, she fell while going up stairs and injured her left knee to the degree that she was unable to run or pivot on the left leg, and there was x-ray evidence of soft tissue swelling. A January 2009 bone scan showed "no scintigraphic evidence of frank stress fractures with stress related changes noted in the lesser trochanters, medial tibial plateaus and calcanei." Later in January, the STRs document bilateral lower extremity pain, to specifically include pain in the left knee, assessed as compression arthralgia. April 2009 private treatment records note the Veteran had ongoing bilateral knee pain, but X-rays of the knees were negative. An April 2009 private MRI showed posterior chondral defect along the medical and lateral femoral condyle and joint effusion of the left knee. September 2019 VA X-rays documented left knee patellar spurring. The June 2019 VA examiner opined that left knee patellar spurring was not etiologically related to the Veteran's period of service. The examiner explained that left patellar spurring was not diagnosed until 2019, therefore it was not incurred or caused by bilateral hip issues that occurred in service. It is unclear why the examiner's opinion focused on a relationship to the bilateral hip issues in service and failed to address the left knee injury in service. The examiner also failed to address the prior MRI studies showing chondral defects. As a result of the examiner's failure to address relevant evidence or to provide a well-articulated rationale, the opinion is inadequate and remand for an addendum is required. The matters are REMANDED for the following action: 1. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the left knee condition from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner is requested to clarify all left knee diagnoses present since 2018. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a left knee disorder had onset in, or is otherwise related to, active service. The examiner must specifically address the following: 1) the STRs from December 2008 through January 2009 documenting a history of left knee pain after an MVA but noting the Veteran was cleared for training and then suffered an additional left knee injury; 2) the April 2009 private MRI report; 3) the September 2019 VA X-rays; and 4) the lay and medical evidence indicating chronic left knee symptoms since service. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.