Citation Nr: 21040661 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 19-28 769 DATE: July 6, 2021 REMANDED Entitlement to an increased rating in excess of 40 percent for a right ankle disability is remanded. Entitlement to service connection for a bilateral hip disability, to include as secondary to a service-connected right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1964 to April 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision. In March 2021, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. By way of background, the Veteran was granted service connection for a right ankle disability with a noncompensable rating from June 15, 1995. In a January 2015 rating decision, his rating was increased to 40 percent, effective November 3, 2014. The Veteran subsequently filed his claim for an increased rating for his service-connected right ankle disability as well as for service connection for a bilateral hip disability. See June 2016 VA Form 21-526b. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159. 1. Entitlement to an increased rating in excess of 40 percent for a right ankle disability is remanded. 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to a service-connected right ankle disability is remanded. The Veteran contends that his ankle has deteriorated. During his March 2021 hearing, the Veteran testified that his ankle swells, and this has been happening ever since he got out of the military. He testified that if he does not wear his ankle brace, his ankle goes inward. The Veteran testified that amputation has been discussed, but that he wants to save it and thinks that is the best way. He testified that he uses a cane to walk around, and he uses a brace, but not on Sundays around the house. The Veteran testified that his ankle pain is at a level of 10 at all times, and he uses Lidocaine patches and pain-relieving cream; he testified that he had been on opioids but has been taken off of them. The Veteran also testified that he has gone to the emergency room for pain, but not this year; he thought he went at least twice last year, however, The Veteran testified that two or three times a month he has days on which he is laid up because of his ankle and he does not get up except to go to the bathroom. The Veteran also testified that he has some symptoms including burning, tingling, loss of sensation, and numbness, and that he has fallen twice when his foot and cane got caught. With respect to his hip condition, the Veteran testified that he never had problems with his hips "until this ankle thing and trying to relieve the pain." He testified that he started walking differently to try to relieve some of the pain. He testified that he had a doctor who "kind of alluded" to his hips being related to his ankle disability and noted that this was about a year and a half or a couple years ago. The Veteran testified that he receives all of his care through the VA. See March 2021 Hearing Transcript. At the outset, the Board notes that there appear to be outstanding VA treatment records that may be pertinent to the issues on appeal. With regard to VA treatment records, the Board notes that the most recent VA treatment records currently associated with the claims file include those from Ft. Wayne and Marion VA Medical Centers dated February 12, 1997 to July 16, 2019. As discussed above, during his March 2021 hearing, the Veteran testified that he visited the emergency room at least twice last year for pain. Further, after the March 2021 hearing, the Veteran's representative advised that the Veteran had informed them that he has more medical records, which are located at the Ft. Wayne VA. See April 2021 American Legion correspondence. Accordingly, remand is required to obtain the outstanding VA treatment records. With respect to the Veteran's right ankle, the record reflects that the most recent VA examination assessing the nature and severity of the Veteran's service-connected right ankle disability was in January 2017. Subsequently, as discussed above, the Veteran testified at his March 2021 hearing that amputation has been discussed as an option and that his pain is at a level of 10 at all times; the Veteran also testified that he has experienced some symptoms including burning, tingling, loss of sensation, and numbness, and that he has fallen twice due to his ankle. Given the Veteran's contentions and evidence of potential worsening, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating for his service-connected left ankle disability. With respect to the Veteran's hip condition, the Veteran was afforded a VA Hip and Thigh Conditions examination in September 2016 during which a diagnosis of bilateral hip osteoarthritis was noted. During the examination, the Veteran contended that he has sharp pain in both hips daily and when he is on the hips. The Veteran further stated that he can walk a quarter mile and then he has to get off his feet. The Veteran reported no flare ups, but that he had functional loss such that pain in both his hips makes bending his hips to tie his shoes painful and difficult. The VA examiner noted the diagnostic testing showing mild bilateral hip osteoarthritis. As a result of the VA examination, the VA examiner opined that the Veteran's hip condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The VA examiner explained that the Veteran has no leg length difference; ROM loss is bilateral and due to body habitus a natural loss of motion due to thighs meeting abdomen. He noted the Veteran's mild bilateral arthritis, and he explained that the bilateral hip condition is more likely due to bilateral arthritis (found on X-rays) due to age than the right ankle. See September 2016 VA examination report. The September 2016 medical opinion appears to be incomplete, as the examiner only addressed the causation aspect of secondary service connection and did not address the aggravation aspect. 38 C.F.R. § 3.310. Once VA undertakes an effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one, or at a minimum, notify the Veteran as to why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The U.S. Court of Appeals for Veterans Claims (Court) has held that a medical opinion which focuses solely on causation is inadequate to address whether a service-connected disability aggravated another condition. When causation and aggravation are at issue, the Board must ensure that the opinion addresses each. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Thus, a VA addendum medical opinion that adequately addresses both the causation and aggravation aspects of secondary service connection is required. The matters are REMANDED for the following action: 1. Obtain and associate with the file any outstanding VA treatment records. 2. Schedule the Veteran for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected right ankle disability. The entire record must be made available to and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his service-connected right ankle disability. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 3. Obtain a medical opinion to determine the nature and etiology of the Veteran's bilateral hip disability. A complete copy of the claims file must be made available to the examiner for review. Following review of the entire record, to include the March 2021 Board hearing transcript, the reviewing examiner should address the following, as appropriate: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current bilateral hip disorder had onset in or is otherwise related to his period of active duty service? b) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran's current bilateral hip disorder is caused or aggravated by Veteran's service-connected right ankle disability? In offering any opinion, the examiner must consider the full record, to include the lay statements of record, and the opinion should reflect such consideration. A complete rationale should be given for all opinions and conclusions expressed. (Continued on Next Page) 4. After completing the above actions, to include any other development deemed necessary, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.