Citation Nr: 21014063 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-28 452 DATE: March 11, 2021 ORDER Entitlement to service connection for a right hip disability as due to service-connected residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle, is granted. REMANDED Entitlement to an increased evaluation in excess of 20 percent for residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle (excluding periods of temporary total rating from October 22, 2015 to February 1, 2016) is remanded. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran’s right hip disability is caused by the Veteran’s residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle. CONCLUSION OF LAW The criteria for service connection for a right hip disability as due to service-connected residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle, have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Air Force from June 1977 to June 1981. This matter is on appeal from an October 2017 rating decision. The Veteran was afforded a hearing with the undersigned Judge in May 2020. A transcript of the hearing has been associated with the claims record. Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Also, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Right hip disability The Veteran contends that his right hip disability is due to his service-connected residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle. Review of the medical treatment record shows complaints and treatment for right hip pain. A September 2017 VA examination diagnosed a right hip strain and a March 2020 submitted private disabilities benefits questionnaire (DBQ) diagnosed bilateral arthritis of the hips. As such, the Board finds the Veteran with a current disability. Review of the Veteran’s service treatment records (STRs) do not show any complaints, treatments or diagnoses relating to a right hip disability. In August 2016, the Veteran reported sharp and throbbing pain in his right hip. In October 2016, the Veteran reported pain in his right hip and the treating provider noted that x-ray testing found mild degenerative changes. In April 2017 the Veteran filed a claim for service connection for a right hip condition “secondary to left knee and ankle deformity.” The Veteran was afforded a September 2017 VA examination. The examiner diagnosed the Veteran with a right hip strain. The Veteran reported the onset of his condition in 2016 when he felt pain in his back after sitting for a long time and x-ray testing found arthritis. The Veteran asserted that his hip condition had worsened with symptoms of stiffness and constant sharp and throbbing pain. The examiner found it was less likely than not that the Veteran’s right hip disability was related to the residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle. The examiner opined the two conditions were “medically separate and unrelated”; and medical literature did no support that the residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle would cause a right hip condition. The Board notes that the opinion does not identify a baseline or address whether the Veteran’s residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle aggravated his right hip disability. As such, the Board finds the opinion inadequate and affords it less probative weight. In November 2017 the Veteran reported an acquired leg length difference in his left leg and requested that this be documented. The treating provider noted that upon measurement, the Veteran’s right leg length measured at 102 cm and his left leg length was measured at 99 cm. The provider noted that the Veteran had a left heel lift and the Veteran reported right hip pain since being fitted for the heel lift. The provider stated that the right hip pain was probably due to ill-fitting of the heel lift. In the submitted December 2017 form 9, the Veteran stated that he felt that his right hip condition had been caused by his “service-connected left knee and ankle condition.” The Veteran submitted a March 2020 private DBQ. The private examiner diagnosed the Veteran with bilateral osteoarthritis of the hips. The Veteran reported that as a result of his service-connected residuals of a fracture of his left tibia, he has a 1-inch leg length discrepancy as well as chronic pain and decreased range of motion. As a result, the Veteran has to overcompensate with his right leg which resulted in additional strain, increased pain and decreased range of motion. The private examiner observed the Veteran with “obvious deformity with outward bowing to the left lower leg and areas of the tibia that protrude out and can be seen under the skin.” The examiner stated these deformities resulted in additional strain to the right hip. The examiner opined that the chronic right hip pain and decreased range of motion was more likely than not secondary to the Veteran’s service-connected disability of his left leg. After review of the evidence of record, the Board finds the evidence to be relative equipoise. As addressed above, the Veteran has a current right hip disability and is service connected for residuals of a left tibia fracture. The submitted March 2020 private DBQ examiner opined that the Veteran’s residuals of a left tibia fracture led to his current right hip disability. As such, resolving reasonable doubt in favor of the Veteran, the Board finds service-connection for a right hip disability is warranted. REASONS FOR REMAND The Board finds that remand is warranted for additional development. Residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle The Board notes the most recent VA examination afforded to the Veteran was in February 2017. The Veteran also submitted a March 2020 private DBQ evaluating his residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov.30, 2020). In particular, the rating criteria was changed for Diagnostic Code 5262 for which the Veteran’s disability is currently rated. Review of the record does not show the provided examinations have sufficient evidence to rate the Veteran’s disability under the new rating criteria; therefore, the Board fins remand a new examination is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records pertinent to the Veteran’s residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle. 2. Schedule the Veteran for appropriate VA examination to assess the current severity of the Veteran’s service-connected residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle. The electronic claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail. Upon examination of the record and the Veteran, the examiner should address the following: (a.) Record in detail the symptoms and manifestations of the Veteran’s residuals of fracture, left proximal tibia with varus deformity and degenerative changes of the knee and ankle. (b.) The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected parts. (c.) The examiner should identify the degree of any additional range of motion loss due to pain on use or during flare-ups. (d.) If the Veteran reports flare-ups but the examination is not conducted during a flare-up, appropriate information should be solicited from the Veteran in order to attempt to estimate any additional impairment during flare-ups. (e.) The examiner should report on the length of time the Veteran’s disability required treatment; whether this time was for no less than 12 consecutive months; and/or is unresponsive to surgery and either shoe orthotics or other conservative treatment. 3. The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. (a.) If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (b.) A complete rationale is requested for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, 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.