Citation Nr: 21011595 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-28 618A DATE: March 2, 2021 ORDER Entitlement to an initial rating greater than 60 percent for ischemic heart disease is denied. REMANDED Entitlement to service connection for a right hip and leg condition, to include as due to a service-connected left hip condition, is remanded. FINDING OF FACT The record evidence shows that the Veteran’s ischemic heart disease is manifested by, at worst, a workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs resulting in dyspnea, fatigue and instability of gait. CONCLUSION OF LAW The criteria for entitlement to an initial rating greater than 60 percent for ischemic heart disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.104, Diagnostic Code (DC) 7005 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from May 1969 to March 1971 and from July 1986 to September 1988 and in the U.S. Army National Guard from January 1983 to November 1985. This appeal has a long procedural history. The Veteran initially was granted service connection for ischemic heart disease in an August 2014 Rating Decision pursuant to Diagnostic Code 7005 with an evaluation of 10 percent effective July 2, 2014. The Agency of Original Jurisdiction (AOJ) assigned a higher initial 60 percent rating for the Veteran’s service-connected ischemic heart disease effective July 2, 2014, in a February 2015 Rating Decision. This matter was remanded previously by the Board of Veterans’ Appeals (Board) to the AOJ in December 2018. 1. Entitlement to an initial rating greater than 60 percent for ischemic heart disease is denied. The Board finds that the evidence is against assigning an initial 60 percent rating for ischemic heart disease. The Board acknowledges the Veteran’s contentions that he wants the maximum schedular rating. To warrant a higher rating than 60 percent for ischemic heart disease under DC 7005, the evidence must show chronic congestive heart failure; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, a left ventricular ejection fraction of 30 percent or less. See 38 C.F.R. § 4.104, DC 7005 (2019). This level of disability is not reflected in his examination reports, however. For example, the Veteran was afforded a VA examination in July 2014. He did not have congestive heart failure at this time. The examiner conducted an interview based METs test and indicated that a workload between 3 METs and 5 METs caused dyspnea, fatigue, and inability to walk on treadmill for non-cardiac disorders. See July 2014 VA examination. The Veteran was afforded another examination in September 2014. The examiner conducted an interview based METs test and indicated that a workload between 3 METs and 5 METs caused dyspnea, fatigue, and instability of gait. The September 2014 examiner provided an addendum opinion in January 2015. This examiner concluded the 3 METs and 5 METs sole contribution was due to ischemic heart disease and was with no contribution of the mitral valve. The medical evidence of record demonstrates that the Veteran experienced dyspnea, fatigue, and instability of gait from a workload of greater than 3 METs to 5 METs as a result of his service-connected ischemic heart disease. These manifestations are contemplated by the current 60 percent rating; accordingly, a rating of 60 percent for ischemic heart disease under DC 7005 is not warranted. Id. There also is no indication that the Veteran experiences chronic congestive heart failure or a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, such that a 100 percent rating is warranted for his service-connected ischemic heart disease. Id. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 60 percent for his service-connected ischemic heart disease. In summary, the Board finds that the criteria for an initial rating greater than 60 percent for ischemic heart disease have not been met. REASONS FOR REMAND 2. Entitlement to service connection for a right hip and leg condition, to include as due to a service-connected left hip condition, is remanded. The Board acknowledges that the Veteran’s service connection claim for a right hip and leg condition was remanded previously. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The December 2018 Board remand found the Veteran’s June 2014 negative nexus opinion relied on the finding of a research paper from 2005. The Board noted that the Veteran submitted more recent medical literature from 2011 that had not been considered previously. On remand, the Board directed the examiner to address the 2011 article and to opine whether the Veteran’s service-connected left hip disability had caused or aggravated the right hip or leg condition. Following the December 2018 Board remand, the Veteran was afforded a VA examination in July 2020 to address whether his service-connected left hip disability caused or aggravated his right hip and leg disability. The examiner issued a negative opinion, concluding that the proximate cause for the Veteran’s right hip’s aggravation was multifactorial, specifically noting, age, hemiplegia, smoking, alcohol, diet, nutritional, weight bearing or genetics as possible causes. The examiner noted there was no alteration in gait or body mechanics found and none were documented. Therefore, there was no objective medical evidence to suggest that Veterans left hip would aggravate beyond its natural progression the right hip. The examiner also acknowledged the Veteran’s submitted article but found the article did not apply when there were other well documented proximate causes. As to causation, the examiner did not provide an opinion. The Board finds that the examiner’s rationale regarding secondary service connection is conclusory, unclear, and appears to be based on an inaccurate factual predicate. In the July 2020 examination, the examiner noted the leg discrepancy but there was no alteration in gait. In the Veteran’s previous examination in July 2014, he reported that he limited walking and had to use a cane or walker due to hip pain. Further, the July 2014 examiner noted less movement than normal, pain on movement and a disturbance of locomotion in the right leg and hip. Moreover, in the Veteran’s November 2013 hearing, he reported that deficiencies in his left leg had him rely on his right leg and hip when walking. Specifically, the Veteran noted that the walking in the left hip and leg was short and that motion affected the right hip. The July 2020 opinion lacks sound reasoning and appears to be based on an inaccurate predicate; therefore, the July 2020 examination lacks probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the probative value of a medical opinion is derived from its factually accurate, fully articulated, and sound reasoning for the conclusion); Reonal v. Brown, 5 Vet. App. 458 (1993) (noting that a medical opinion based on an inaccurate factual predicate lacks probative value). In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board without complying with the December 2018 remand instructions. Given this error, another remand is required. The AOJ also should obtain the Veteran’s updated treatment records. The matter is REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran’s updated treatment records. 2. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran’s right hip and leg disability. If possible, this opinion should be provided by a clinician other than the clinician who provided the July 6, 2020, opinion. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., at least a 50 percent or greater probability) that the Veteran’s service-connected left hip disability caused or aggravated a right hip and leg disability. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician should review and consider an article submitted by the Veteran in his July 2018 appellate brief. This article found that new research shows a leg length discrepancy of 2 centimeters can lead to osteoarthritis of the knee and hip. The medical evidence shows that the Veteran has a 3 centimeter discrepancy. The clinician is advised not to review or rely upon a July 6, 2020, opinion in preparing his or her own medical nexus opinion. 3. Review the opinion, once obtained, and determine whether it complies substantially with this REMAND. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Emily A. Kotroco 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.