Citation Nr: 21030928 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-30 001 DATE: May 20, 2021 REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1978 to October 1984. This matter was previously remanded by the Board of Veterans' Appeals (Board) in June 2016 and February 2018. 1. & 2. Entitlement to service connection for right and left ankle disabilities is remanded. The Veteran contends that his current right and left ankle conditions are related to his active service or was caused or aggravated by his service-connected disabilities, in particular in service-connected left foot disability. In accordance with the February 2018 Board remand, the Veteran had another examination for his bilateral ankle conditions in December 2018. The examiner opined that it was less likely than not that the Veteran's bilateral ankle conditions were incurred in or caused by his active duty service. The examiner noted that a February 2011 podiatry note did not report degenerative joint disease of the ankles, but referred specifically to the toes and foot itself, not the ankles. Further, the examiner noted that no imaging study was done at the time or available to suggest there was degenerative joint disease of the foot or ankle. The examiner concluded that the Veteran's bilateral ankle conditions were not caused by or related to active service to include injuries in November 1981 and July 1983. The examiner indicated that, based on a single note of ankle pain with no further recurrence and the clinical note in February 2011 reporting primarily foot issues without any reported abnormality specifically regarding the ankle joint, the Veteran's current ankle disorder was not incurred from active service events. Additionally, the December 2018 examiner opined that it was less likely than not that the Veteran's right and left ankle conditions were caused or aggravated by his service-connected disabilities. The examiner noted that medical records indicated that the Veteran had a normal gait in 1986, 1988, 1993, 1997, 2008, 2009, 2012, and 2016 which suggested that the Veteran's current right and left ankle conditions were not due to any left foot/leg issues but were independent and separate from the Veteran's foot issues. The examiner further noted that while the Veteran's right and left ankle conditions had increased in severity, they were not due to the Veteran's service-connected disabilities. The examiner noted that numerous clinical notes showing a normal gait from 1988 to 2016 indicated that the current right and left ankle joint conditions were incurred independent of active service events. The Board finds the December 2018 examiner's opinion to be inadequate. The examiner did not adequately address whether the Veteran's service-connected disabilities aggravated his right and left ankle conditions. The examiner noted that the Veteran's ankle conditions incurred independently of "active service events" but did not adequately address whether the Veteran's bilateral ankle conditions were aggravated by his service-connected disabilities. An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Accordingly, remand is appropriate for an addendum medical opinion to adequately address whether the Veteran's right and left ankle conditions were aggravated by his service-connected disabilities. 3. & 4. Entitlement to service connection for right and left hip disabilities is remanded. The Veteran contends that his right and left hip conditions warrant service connection. Specifically, the Veteran asserts that his bilateral hip conditions were caused or aggravated by his service-connected disabilities, in particular his service-connected left foot disability. In accordance with the February 2018 Board remand, the Veteran had another examination for his bilateral ankle conditions in December 2018. The examiner opined that it was less likely than not that the Veteran's hip conditions were incurred in or caused by the Veteran's active duty service. The examiner noted that the medical records indicated that the Veteran had a normal gait in 1986, 1988, 1993, 1997, 2008, 2009, 2012, 2016, which suggested that the Veteran's bilateral hip conditions were not due to left leg/foot issues but an independent and separate from the foot issues, including the Veteran's in-service injury in July 1983. The examiner noted that a July 1983 clinical record indicated that the Veteran experienced ankle pain with radiation up the hip when walking without recurrence. The examiner further noted that the Veteran had normal range of motion of the hips and a normal gait. The examiner concluded that the medical evidence suggested that the Veteran's current bilateral hip condition was not incurred from a single event noted in 1983. Additionally, the examiner opined that it was less likely than not that the Veteran's right and left hip conditions were caused or aggravated by his service-connected disabilities. The examiner noted that the Veteran had a normal gait in 1986, 1988, 1993, 1997, 2008, 2009, 2012, and 2016. The examiner stated that the Veteran's current bilateral hip conditions were not due to left leg/foot issues but an independent and separate from the Veteran's service-connected foot issues. The examiner opined that the Veteran's hip conditions were not aggravated beyond their natural progression. The examiner stated that the medical evidence of record indicates that the Veteran's hips were normal until 2017, which suggests the Veteran's bilateral hip conditions were not aggravated beyond their natural progression by a singular hip issue during active service. An addendum medical opinion was obtained in January 2020. The examiner noted that a May 2008 VA treatment record reported that "perhaps because of long standing left leg pain and favoring the leg he has developed [bilateral] hip and foot arthralgia and foot sensitivity which further clouds the picture." The examiner stated that this assessment is "speculative at best," and that if the Veteran's foot condition was as severe and debilitating as he asserted then the Veteran would not have been able to play basketball throughout his military service or worked as a high school custodian five days a week since 1997 until retirement. Additionally, the examiner stated that the Veteran had a significant back injury in 1988 with subsequent chronic back issues. Furthermore, the examiner noted that the Veteran has had normal gait from 1993 to 2016 which suggests there is no "compensation of the foot by the hip joint, back condition, or any other joints". The examiner opined that the Veteran's "left foot condition is less likely than not due to compensation for the [bilateral] hip condition based on fact of NORMAL GAIT between 1993 to 2016 and significant back condition due to post service injury, not left foot." The examiner also opined that the Veteran's "left foot condition is less likely than not aggravated by the [bilateral] hip condition based on fact of NORMAL GAIT between 1993 to 2016 and significant back condition due to post service injury which suggest the hip joints are solely due to the back condition, not left foot" The Board finds that the December 2018 and January 2020 medical opinions are inadequate. The examiner did not adequately address whether the Veteran's service-connected disabilities aggravated his right and left hip conditions. The examiner stated that the Veteran's hip conditions were not aggravated beyond their natural progression "by a singular hip issue during active service" but did not adequately address whether the Veteran's bilateral hip conditions were aggravated by his service-connected disabilities. Additionally, in the January 2020 medical opinion the examiner opined that the Veteran's left foot disability was not caused or aggravated by his hip conditions but did not adequately opine on whether the Veteran's hip conditions were aggravated by his service-connected disabilities. Furthermore, the examiner stated that the medical evidence suggests that the Veteran's hip conditions are solely due to the Veteran's back condition but did not adequately address the issue of aggravation. An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Accordingly, remand is appropriate for an addendum medical opinion to adequately address whether the Veteran's right and left hip conditions were aggravated by his service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a qualified VA medical professional to determine whether the Veteran's current bilateral ankle conditions are related to his military service and/or secondary to his service-connected disabilities to include his service-connected left foot disability. The record must be made available to and reviewed by the VA examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the entire record, the examiner should address the following: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral ankle conditions had their onset in, or are otherwise related to his period of active duty service, to include the November 1981 and July 1983 in-service ankle injuries? The examiner should specifically address the private treatment records from 2011 showing a diagnosis of bilateral ankle degenerative joint disease. See VBMS, document labeled Medical Treatment Record - Non-Government Facility, receipt date 01/19/2012. b) Notwithstanding the above, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral ankle conditions were caused by his service-connected disabilities, to include his left foot disability? c) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral ankle condition is aggravated by his service-connected disabilities, to include his left foot disability? **Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 2. Obtain an addendum medical opinion from a qualified VA medical professional to determine whether the Veteran's current bilateral hip conditions are related to his military service and/or secondary to his service-connected disabilities to include his service-connected left foot disability.. The record must be made available to and reviewed by the VA examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the entire record, the examiner should address the following: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral hip conditions had their onset in, or are otherwise related to his period of active duty service, to include the left hip pain reported as due to the July 1983 left ankle injury? b) Notwithstanding the above, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral hip conditions were caused by his service-connected disabilities, to include his left foot disability? The examiner should specifically address the May 2008 VA treatment record suggesting that the service-connected left foot disorder may have caused a bilateral hip disorder. See VBMS, document labeled CAPRI, receipt date 04/26/2013, page 67. c) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hip conditions were aggravated by his service-connected disabilities, to include his left foot disability? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 3. Then, readjudicate the claims on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, Associate 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.