Citation Nr: 21040566 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-30 004 DATE: July 6, 2021 ORDER Service connection for a right hip disability is denied. REMANDED Service connection for a left hip disability is remanded. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. FINDING OF FACT A right hip disability, other than the service-connected right lower extremity radiculopathy, is not shown. CONCLUSION OF LAW The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1981to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2016 and October 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded to afford the Veteran VA examinations. She underwent knee and hip examinations in March 2020. In a September 2020 statement, the Veteran asserts that the VA examinations were inadequate because they were based upon incorrect factual premises. Specifically, the Veteran asserts that at no time did the examination report mention her car wreck in 1983 or running on pavement in the military. Further, the Veteran asserts that the VA examiner's conclusion that her hip and back problems are due to her weight is a false statement. She asserts that the problem with her back was an accident in 1985, and that she was not overweight in service, when her hips started hurting. She noted that she gained weight with her last two children but lost 80 pounds and kept it off until the last few years when back and knee problems made it impossible to exercise. She asserts that the VA examiner never checked the records or he would have seen how her weight changed. She further asserts that the examination was inadequate because the VA examiner did not watch her walk, even though her contention is that gait issues cause her problems. In a November 2020 statement, the Veteran asserted that the VA examiner did not refer to the three specialists' opinions she submitted linking her hips to her back. A medical opinion is adequate when it is based upon consideration of a claimant's prior medical history and examinations and describes the disability in sufficient detail so that the evaluation of the claimed disability will be a fully informed one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With respect to the VA hip examination, the Board finds that the March 2020 VA hip and thigh examination was adequate for the purposes of determining whether the Veteran had a current hip disability. The examiner reviewed the Veteran's history and the claims file, which, contained the hearing transcript that mentioned the car accident. The examiner determined that there was no right hip disability separate from the current right lower extremity radiculopathy, which is already service-connected. The VA examiner who conducted the hip examination also conducted the knee examination on the same day. The Board finds the examiner watched the Veteran walk. VA examiners observe patients at times when they may not be aware they are being observed. The examination report supports a finding that the March 2020 knee examiner watched the Veteran walk. The examiner stated, "[s]he walks slowly although was safe and stable as she walked in the hall." Later in the examination report he noted that the Veteran "[m]oved/walked very slowly." The examiner also noted in the remarks section of the examination report that, "[t]he Veteran walks very slowly but is safe and functional with walking although restricted in her distance and speed." Because of the finding below that there is no right hip disability, any lack of discussion of the causes is moot. For the purpose of whether there was a current disability, the Board finds there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. at 271. Neither the Veteran nor her representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Service connection for a right hip disability. The Veteran asserts that she has a right hip disability that is related to her service-connected low back disability. The question for the Board is whether the Veteran has a right hip disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In particular, in this case, the Veteran has reported symptoms of pain and numbness in her hip and thigh. She has already been awarded service-connection for bilateral lower extremity radiculopathy. Service-connection for radiculopathy contemplates pain and numbness of the lower extremity and the sciatic nerve. Therefore, the question is whether she has a disability of the right hip that is separate from the service-connected nerve disability. The Board concludes that the Veteran does not have a current diagnosis of separate right hip disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is somewhat conflicting medical evidence in this regard. The October 2018 VA hip and thigh conditions examination found no diagnosis related to the right hip. A subsequent opinion, however, stated that "current severity of the service-connected chronic lumbar strain with bulging disc warrants by proximity, association of the claimed secondary right hip condition." It further stated that "piriformis syndrome is the result of an inflammation in the muscle that presses on the sciatica nerve. The pain is more localized to the hip and buttock." This opinion is vague as to what the disability is and whether the disability is separate from the service-connected sciatic nerve disability. Therefore, the Board gives this medical opinion little weight. On the other hand, a March 2020 VA medical examination was conducted. In that examination, there was no separate diagnosis for the right hip found, however, there was a separate diagnosis found for the left hip. The fact that the examiner found a diagnosis in the left hip but none in the right persuades the Board that the examiner was thorough. A November 2018 statement from Dr. J. B. notes there was greater trochanteric bursitis and mild tendinitis. The statement does not indicate which hip, however, the August 2018 MRI report submitted with this statement notes that it is the left hip. A November 2019 statement from Dr. S. states that the chronic hip pain has progressed due to issues with her lower back condition. This statement does not provide evidence that there is a hip disability other than the currently service-connected sciatic nerve disability. It refers to chronic pain, which can also be symptom of the sciatic nerve disability. Therefore, the statement is of little value in establishing that the Veteran has a right hip disability separate from her service-connected right sciatic nerved disability. The Veteran is competent to report symptoms of pain and numbness in her right hip. The Board attributes the pain and numbness symptoms to the Veteran's service-connected right lower extremity radiculopathy based on the findings of the March 2020 VA peripheral nerves examiner who stated that she had pain from her low back to her feet, which felt like an "electric shock" and that she had previously reported numbness. The Veteran does not have additional right hip symptoms that are separate from her service-connected nerve condition. While the Veteran believes she has a current right hip disability that is separate from her right lower extremity radiculopathy, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education of internal processes and anatomical functioning. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). She does not have the requisite training or experience needed to opine on such complex matters. Consequently, the Board gives more probative weight to the April 2020 VA examination report. REASONS FOR REMAND 1. Service connection for a left hip disability is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of service connection for a left hip disability. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Board has found that the Veteran does not have a right hip disability that is distinct from her already service-connected right lower extremity radiculopathy, no additional opinion is needed for the right hip. For the left hip, in the February 2020 Board remand, the Board directed the RO to obtain a VA medical opinion as to whether the Veteran's hip disability is caused or aggravated by her service-connected low back disability. The March 2020 VA examiner rendered an opinion as to whether the low back caused the left hip disability. However, the examiner did not render an opinion as to whether the low back disability aggravated the left hip disability. Furthermore, the Veteran asserted in a September 2020 statement that her service-connected back disability caused her to gain weight which makes it "impossible" to exercise. This statement can be construed as asserting that her service-connected back disability made her existing obesity worse. Although obesity on its own cannot qualify for service connection, it may serve as an "intermediate step" between a service-connected disability and a current disability and, thus, satisfy the causal link between the two. VAOGCPREC 1-2017. The concept of aggravation applies to this "intermediate step" theory. Walsh v. Wilkie, 32 Vet. App. 300 (2020). A medical opinion is required to address whether the low back disability and its associated sciatic nerve disabilities caused or aggravated the left hip disability through the intermediate step of obesity. 2. Service connection for a left knee disability. 3. Service connection for a right knee disability. As to the left and right knee disabilities, an opinion is necessary to address whether the low back disability caused or aggravated the left and right knee disabilities through the intermediate step of obesity. The matters are REMANDED for the following action: 1. Obtain addendum opinions from an appropriate clinician addressing the Veteran's left hip disability (other than the sciatic nerve disability). The examiner is asked to address the following: (a.) Whether the Veteran's left hip chondromalacia and/or labrum tear is at least as likely as not aggravated beyond its natural progression by her service-connected low back disability. (b.) Whether the Veteran's left hip chondromalacia and/or labrum tear is at least as likely as not aggravated beyond its natural progression by her service-connected lower extremity radiculopathy disability. (c.) Whether it is at least as likely as not that the Veteran's service-connected low back and sciatic nerve disabilities caused or aggravated the Veteran's obesity. (d.) If the Veteran's service-connected low back and sciatic nerve disabilities caused or aggravated her obesity, then determine whether the obesity as a result of the low back and sciatic nerve disabilities was a substantial factor in causing the left hip disabilities of chondromalacia and/or labrum tear. (e.) If the obesity as a result of the low back and sciatic nerve disabilities was a substantial factor in causing the left hip disabilities of chondromalacia and/or labrum tear, then determine whether the left hip chondromalacia and/or labrum tear would not have occurred but for the obesity caused or aggravated by the service-connected low back and sciatic nerve disabilities. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Obtain addendum opinions from an appropriate clinician addressing the Veteran's right and left knee left and right knee degenerative arthritis disabilities. The examiner is asked to address the following, separately for each knee: (a.) Whether it is at least as likely as not that the Veteran's service-connected low back and sciatic nerve disabilities caused or aggravated the Veteran's obesity. (b.) If the Veteran's service-connected low back and sciatic nerve disabilities caused or aggravated her obesity, then determine whether the obesity as a result of the low back and sciatic nerve disabilities was a substantial factor in causing the left and right knee degenerative arthritis. (c.) If the obesity as a result of the low back and sciatic nerve disabilities was a substantial factor in causing the left and right knee degenerative arthritis, then determine whether the left and right knee degenerative arthritis would not have occurred but for the obesity caused or aggravated by the service-connected low back and sciatic nerve disabilities. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Ensure compliance of these remand directives according to Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Readjudicate the claims. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.