Citation Nr: 21008086 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 18-14 558 DATE: February 11, 2021 REMAND Service connection for a left hip disability as secondary to service-connected residuals of bilateral heel fractures is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from May 1952 to May 1956 and from March 1958 to March 1962. The Veteran died in October 2017. Appellant is the surviving spouse and substitute claimant in this appeal. See 38 U.S.C. § 5121A. As such, she brings the current claim without the restrictions imposed by 38 U.S.C. § 5121. Appellant is a properly substituted claimant and is prosecuting this claim as such and not for accrued benefits purposes under older, less favorable laws. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In January 2021, a hearing was held before the undersigned Veterans Law Judge. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service connection for left hip disability secondary to service-connected residuals of bilateral heel fractures To establish service connection, the evidence must generally show (1) a present disability, (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d).  Service connection on a secondary basis is warranted when it is shown that a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. This includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a Veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See Allen, 7 Vet. App. at 448. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has noted that conditions may wax and wane in severity, and that a medically ascertainable incremental increase in disability, may meet the definition of  “disability” – ”the impairment of earning capacity due to disease, injury, or defect.” Ward v. Wilkie, 31 Vet. App. 233, 239-40 (2019).  The Veteran and Appellant contend that the Veteran’s fall and subsequent left hip disability were secondary to the residuals of his bilateral heel fractures. Because the Veteran and Appellant have not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. See 38 C.F.R. § 3.310. The Veteran’s service treatment records show that, following a significant in-service fall, the Veteran was hospitalized where a cast was placed on his left ankle and heel, and a surgical reduction of his right heel was conducted. The Veteran is service-connected for the residuals of his bilateral heel fractures. In pertinent part, a December 1980 private evaluation noted that the Veteran wore soft-soled shoes with a ¾ inch lift in the heels to increase the weight borne on the forefoot. A March 2006 VA clinic evaluation noted that the Veteran was wearing a right ankle sleeve for support with clinical findings of right ankle swelling, and very restricted mobility with eversion and inversion of the right ankle. The Veteran submitted a statement in 2011 described difficulty walking, requiring an ankle brace for the right foot, and double insoles for his shoes to protect his feet. VA examination in September 2011 found the Veteran to have a severe right foot injury and moderately severe left foot injury. He wore a right soft ankle brace. In November 2011, the Veteran described severe neuropathy in both feet which caused him to fall frequently and resulted in injury to his low back. The Veteran’s post-service medical treatment records indicate that, prior to his hip injury, the Veteran was diagnosed with dementia and experienced bilateral neuropathy. Additionally, the Veteran’s medical treatment records note that the Veteran had difficulty walking, a lack of coordination, as well as several previous falls. See April 2013 Correspondence; February 2018 CAPRI. In October 2016, while in a nursing home, the Veteran fell and injured his left hip. After the fall, the Veteran was admitted to the hospital where it was determined that he had a displaced left femoral neck fracture in his left hip. Surgery was completed to correct the fracture. In October 2016, the Veteran filed a claim for service connection for a left hip disability secondary to his service-connected residuals of bilateral heel fractures. In March 2017, a VA examination was attempted to determine the etiology of the Veteran’s hip disability. Unfortunately, the examination could not be conducted because the Veteran was sedated at the time of the VA examination. Therefore, a medical opinion was not provided. Following the Veteran’s death in October 2017, a second VA opinion was sought to determine the etiology of the Veteran’s hip disability. In February 2018, a VA examiner determined that the Veteran’s hip disability was less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner opined that after a thorough review of the Veteran’s medical records, the Veteran’s hip fracture was due to his dementia and agitation as noted by Good Samaritan Hospital. The examiner further noted that the Veteran did not have any significant disabilities related to his feet that would contribute to a fall. The Veteran had fallen multiple times in the past due to his severe back issues and surgeries. However, the fall in which the Veteran fractured his hip appears to have been caused by his dementia related confusion/agitation. Based on the evidence reviewed, the examiner concluded that the Veteran’s left hip femoral neck fracture is much less likely than not due to or the result of a fall caused by his right and left heel fractures. In January 2021, during a hearing before the undersigned Veteran’s Law Judge, Appellant disputed the determination that the Veteran’s fall was due to his dementia. Appellant testified that, prior to his dementia diagnosis, the Veteran would just fall. And that after the Veteran’s hip fracture, he understood the explanation of the procedure necessary to correct the injury. Additionally, Appellant noted the Veteran’s back pain, bilateral neuropathy, and the residual pain due to his bilateral heel fractures were more likely the cause of his October 2016 fall. On review of the record, the Board finds that the VA medical opinion is inadequate. The examiner generally described the Veteran as not having any significant disabilities related to his feet that would contribute to a fall with no further description of disability associated with the Veteran’s feet. As noted above, the Veteran wore a brace on his right ankle which was medically described as demonstrating very restricted mobility with eversion and inversion of the ankle. Prior to the falling injury, VA rated the right ankle disability as severe, and the left ankle disability as moderately severe. As such, the explanation provided by the VA examiner does not adequately address whether the Veteran’s service-connected bilateral foot disability contributed to the falling injury causing a left hip disability. Accordingly, this matter is REMANDED for the following: Obtain an addendum opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that disability attributable to the service-connected right and left foot disabilities contributed to the falling injury which resulted in a left hip disability. The examiner should specifically identify the symptoms attributable to the service-connected right and left foot disabilities and discuss whether these effects contributed to the falling injury that resulted in a left hip disability. In providing this opinion, the examiner should consider the following: • a December 1980 private evaluation noting that the Veteran wore soft-soled shoes with a ¾ inch lift in the heels to increase the weight borne on the forefoot; • a March 2006 VA clinic evaluation noting the Veteran was wearing a right ankle sleeve for support with clinical findings of right ankle swelling, and very restricted mobility with eversion and inversion of the right ankle; • a September 2011 statement from the Veteran describing difficulty walking, requiring an ankle brace for the right foot, and double insoles for his shoes to protect his feet; • VA examination in September 2011 wherein the Veteran described right ankle instability “at times” and which found the Veteran to have a severe right foot injury and moderately severe left foot injury; he wore a right soft ankle brace; • an October 2011 VA podiatry consultation noting absent vibratory sense to the fibular heads of the lower extremities, absent proprioception to the 1st MTPJs in both feet, absent monofilament sense in all toes, ¼ diminished Achilles reflexes and a shuffling gait; • a November 2011 statement from the Veteran wherein he described severe neuropathy in both feet which caused him to fall frequently and resulted in injury to his low back; • a February 2012 medical statement that the Veteran had a history of peripheral neuropathy causing frequent falls; • a November 2012 Aid and Attendance examination report diagnosing dementia with behavioral disturbances; and • a December 2016 medical statement indicating that the Veteran required extensive assistance with activities of daily living with a recent fall resulting in a fractured hip. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.