Citation Nr: 21023357 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-04 061 DATE: April 20, 2021 ORDER Entitlement to service connection for a right hip disorder to include as secondary to service - connected lumbosacral strain and bilateral knee disabilities is granted. Entitlement to service connection for a left hip disorder to include as secondary to service – connected lumbosacral strain and bilateral knee disabilities is granted. REMANDED Entitlement to an initial compensable rating for right knee limitation of extension is remanded. Entitlement to a disability rating in excess of 10 percent for right knee instability with anterior cruciate ligament (ACL) elongation is remanded. Entitlement to a disability rating in excess of 20 percent for lumbosacral strain is remanded. Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral pain syndrome with minimal degenerative changes is remanded. Entitlement to an initial compensable evaluation for left knee limitation of extension is remanded. Entitlement to a disability rating in excess of 10 percent for right knee tendonitis with early degenerative changes is remanded. Entitlement to service connection for a bilateral eye disorder is remanded. Entitlement to a rating of total disability based on individual unemployability due to service-connected disabilities prior to July 2, 2020 is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s right hip disorder is aggravated by his service-connected back and bilateral knee disabilities. 2. The evidence is at least in equipoise as to whether the Veteran’s left hip disorder is aggravated by his service-connected back and bilateral knee disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disorder have been met. 38 U.S.C. §§ 1110, 5107; 38C.F.R. §§3.102, 3.303, 3.310. 2. The criteria for service connection for a left hip disorder have been met. 38 U.S.C. §§ 1110, 5107; 38C.F.R. §§3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1981 to July 1997. He is in receipt of the Parachutist Badge. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated March 2013 and February 2015 by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in October 2018 and March 2020 for further development. The Veteran through his attorney requested that the appeal be stayed for 90 days until March 15, 2020 for the receipt of additional evidence. That evidence including arguments in support of the Veteran’s claims on appeal, has been received and considered in this decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38C.F.R. §3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a right hip disorder to include as secondary to service - connected lumbosacral strain and/or bilateral knee disabilities. 2. Entitlement to service connection for a left hip disorder to include as secondary to service - connected lumbosacral strain and/or bilateral knee disabilities. The Veteran has current diagnoses of degenerative arthritis of his bilateral hips and avascular necrosis of his right hip, as noted in his VA treatment records and February 2019 VA Examination. He is service - connected for back and bilateral knee disorders. Thus, the first and second elements of a secondary service connection claim are met. See 38 C.F.R. § 3.310 (a). The remaining issue for consideration is whether a nexus exists between the Veteran’s bilateral hip disabilities and his service-connected back and bilateral knee disorders. The Board finds that it does. In pertinent part, in November 2020 a medical provider opined that it was more likely than not that the Veteran’s bilateral hip disorder was related to his back and bilateral knee conditions and that the Veteran’s history of back and knee injuries as a result of 15 years of active duty which included Airborne training and parachuting caused sufficient gait disturbance and dysfunction to result in his bilateral hip disabilities. Thus, there is sufficient evidence to establish an etiological link between the Veteran’s bilateral hip disabilities and his service-connected back and bilateral knee disorder. The Board acknowledges the negative nexus opinion provided by the October 2020 VA examiner. The VA examiner explained that there was no clear evidence from a review of the orthopedic literature to suggest that an injury to one joint would result in an injury to another, unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis or shortening of a limb in excess of 5 centimeters; none of which was demonstrated on examination. However, the examiner did not consider or discuss whether any gait dysfunction associated with the Veteran’s service-connected back and knee disorders could have aggravated the Veteran’s bilateral hip disorder. Accordingly, this opinion is inadequate for rating purposes and cannot serve as the basis for a denial of service connection. In light of the foregoing, the Board finds that the evidence is at least in equipoise and as required by the law the benefit of the doubt must be given to the Veteran. Therefore, the Board finds that entitlement to service connection for a bilateral hip disorder as secondary to service-connected back and bilateral knee disabilities is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for lumbosacral strain is remanded. In March 2020, the issue of entitlement to a rating in excess of 20 percent for lumbosacral strain was once again remanded for additional development. A July 2020 VA examination was obtained. In February 2021 written argument, the Veteran through his attorney contends that the July 2020 VA examination is incomplete and therefore inadequate for adjudication. Specifically, the July 2020 examiner declined to perform passive range of motion testing indicating that it was not safe to do so. Accordingly, the true level of the Veteran’s disability and functional loss was not assessed. In particular, the Veteran’s attorney observed that if the implied conclusion by the July 2020 VA examination report is that any motion is painful motion, then that level of functional impairment was not considered in the Veteran’s rating. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also, a remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Board finds that remand for a new VA examination to properly assess the current nature and severity of the Veteran’s lumbosacral spine disability is warranted. Correia v. McDonald, 28 Vet. App. 158 (2016). 2. Entitlement to an initial compensable rating for right knee limitation of extension is remanded. 3. Entitlement to a disability rating in excess of 10 percent for right knee instability with anterior cruciate ligament (ACL) elongation is remanded. 4. Entitlement to a disability rating in excess of 10 percent for right knee tendonitis with early degenerative changes is remanded. 5. Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral pain syndrome with minimal degenerative changes is remanded. 6. Entitlement to an initial compensable evaluation for left knee limitation of extension is remanded. In March 2020, the issues of entitlement to increased ratings for the Veteran’s bilateral knee disabilities was once again remanded for additional development. A July 2020 VA examination was obtained. In February 2021 written argument, the Veteran through his attorney contends that the July 2020 VA examination is incomplete and therefore inadequate for adjudication. Specifically, the July 2020 examiner did not perform passive range of motion testing on the Veteran’s knees. Accordingly, the true level of the Veteran’s disability and functional loss was not assessed. In addition, the examiner did not assess the level of the Veteran’s functional impairment during flareups. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also, a remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Board finds that remand for a new VA examination to properly assess the current nature and severity of the Veteran’s bilateral knee disability is warranted. Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). 7. Entitlement to service connection for a bilateral eye disorder is remanded. In March 2020, the issues of entitlement to service connection for a bilateral eye disorder was remanded for additional development. A July 2020 VA examination and medical opinion was obtained. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also, a remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Board finds that there has not been substantial compliance with the July 2020 remand directives. In particular, the March 2020 Board remand sought a medical opinion regarding the diagnosis of meibomianitis which was not proffered. The Board requires this medical guidance to properly consider the Veteran’s claim on appeal. Accordingly, remand for an addendum medical opinion regarding the diagnosis of meibomianitis is warranted. 8. Entitlement to a rating of total disability based on individual unemployability (TDIU) due to service-connected disabilities prior to July 2, 2020 is remanded. The February 2015 rating decision on appeal denied the Veteran’s claim for TDIU because he did not meet the schedular requirements. In addition, he had not filed VA Form 21-8940 Application for Increased Compensation Based Upon Unemployability so VA could not develop the claim on the merits. In January 2019, the Veteran filed VA Form 21-8940 attesting that he last worked in March 2010. A TDIU rating effective July 2, 2020 was granted by an October 2020 rating decision. The Board finds that the claim for a TDIU prior to July 2, 2020 must also be remanded because it is inextricably intertwined with the Veteran’s back, knee and eye claims which are being remanded for further development. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding, pertinent treatment records, to include both VA and private records. 2. After all available records are obtained for the record, afford the Veteran VA examinations to determine the current nature and severity of his service-connected lumbosacral strain and bilateral knee disabilities. All indicated evaluations, studies, and tests deemed to be necessary should be accomplished. All pertinent evidence of record should be made available to and reviewed by the examiner. All information required for rating purposes should be provided to the examiner(s). (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. To the extent possible, the examiner should identify any symptoms and functional impairments due to lumbar spine and bilateral knee disabilities and discuss the effect of the Veteran’s service-connected disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (b.) If the Veteran refuses to cooperate with any of the requested testing, such must be specifically indicated in the examination report. 3. Forward the Veteran’s claims file (to include this remand) to the July 2020 VA eye examiner for review and to provide an addendum medical opinion that addresses the inadequacies in the July 2020 opinion. First, the examiner should again clearly identify all current left and/or right eye disorders. The examiner should specifically indicate whether the Veteran has amblyopia, myopic astigmatism with presbyopia, immature congenital cataracts, blepharitis with trace superficial punctate keratitis, and meibomianitis. If not, the examiner should address the prior diagnoses of record and explain why such a diagnosis is not warranted. (a) For each current left and/or right eye disorder, the examiner should explain whether it is type of refractive error, another type of congenital defect, or a congenital disease. The examiner should note that a disease generally refers to condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. (b) For each disorder that is determined to be a refractive error and/or congenital defect, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that there was a superimposed disease or injury that occurred during service and resulted in additional disability. (c) For each disorder that is determined to be a congenital or developmental disease, opine as to whether there is clear and unmistakable (undebatable) evidence that the disorder both (i) preexisted the Veteran’s entry into active service, and (ii) did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran’s active service. (d) For each disorder that is not congenital and/or did not preexist service, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had its onset during active service or is otherwise related to active service. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.